37:0952(80)CA - - DOD, Defense Logistics Agency, Defense Depot Tracy, Tracy, CA and Laborers International Union, Local 1276 - - 1990 FLRAdec CA - - v37 p952

Other Files: 


[ v37 p952 ]
37:0952(80)CA
The decision of the Authority follows:


37 FLRA No. 80

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF DEFENSE

DEFENSE LOGISTICS AGENCY

DEFENSE DEPOT TRACY

TRACY, CALIFORNIA

(Respondent)

and

LABORERS INTERNATIONAL UNION

LOCAL 1276

(Charging Party)

9-CA-80143

DECISION AND ORDER

October 12, 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 a meeting in which the Respondent discussed matters relating to new performance standards with bargaining unit employees was not a formal discussion 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.

Contrary to the Judge, we find that the meeting held by the Respondent was a formal discussion within the meaning of the Statute and that the Respondent violated section 7116(a)(1) and (8) of the Statute by not providing the Union an opportunity to be represented at the meeting. Accordingly, we will issue an appropriate remedial order.

II. Facts

Effective January 1, 1988, the Respondent implemented new quantitative performance appraisal standards that affected bargaining unit employees in the Respondent's Receiving Division, Warehouse 10, Sections 3 and 4. Under these standards, the warehouse employees were required to produce a certain amount of work in order to meet the standards set for performance ratings.

The warehouse supervisor has overall supervisory authority for the unit employees in sections 3 and 4; his assistant foreman has immediate supervisory authority over unit employees in section 4. The supervisor and assistant foreman devised a new form, know as a DIMES control card or form. Each employee was required to use the DIMES form to keep a count of the work done and how long it took to do that work ("work counts"). These forms were then to be used "to compute the appraisals at the end of the year." Judge's Decision at 3.

Some of the employees were given the new forms on or about December 28, 1987. On January 4, 1988, the warehouse supervisor decided to have a meeting of the employees because they were not filling out the forms properly. The supervisor and assistant foreman told the employees that a meeting would be held in the lunchroom later that day. About 20 employees attended the meeting and signed an attendance roster.

The meeting, which lasted about an hour, was conducted by the warehouse supervisor. The supervisor explained how employees were to fill out the form. He also explained that the employees would be appraised for the period from January through March, 1988, and there would be no appraisal for the previous 9 months. When the supervisor stated that the section of the form marked "leave" must be filled in, he was asked what effect the taking of leave would have on required productivity standards. The supervisor responded that "scheduled annual leave would not be counted against productivity. However, other leave [such] as sick leave, jury duty, blood donations and military leave would count as having no productivity." Id. at 4. When asked by an employee "how long [before] she would be 'out the gate' [discharged] if unable to meet the required performance standards[,]" the supervisor replied that "he did not think she would be 'out the gate.' However, he did not know, but he did not think so, and it would probably take some time." Id. There were also some discussions at the conclusion of the meeting between supervisors and individual employees who were fearful of losing their jobs under the new standards. The Judge stated that "the record does not reflect any details concerning such discussions." Id.

The Union was not notified of the meeting and did not attend the meeting. The Union and the Respondent met on January 6, 1988, bargained over the impact and implementation of the new standards, and executed an agreement dated February 4, 1988, which provides that certain specified absences from work would be excluded when measuring work performance.

III. Administrative Law Judge's Decision

The Judge stated that the issue is whether the Respondent violated the Statute by not affording the Union an opportunity to be represented at the January 4 meeting. According to the Judge, "it is recognized" that the Respondent called the January 4 meeting to discuss how employees should fill out the DIMES form. Judge's Decision at 5. The Judge stated that the General Counsel maintained, however, that once the subject of leave was raised, management should have adjourned the meeting until a Union representative could attend.

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 an agency and bargaining unit employees. The Judge also noted the Authority's holding, in Department of Health and Human Services, Social Security Administration and Social Security Administration Field Operations, Region II, 29 FLRA 1205 (1987), 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. More specifically, (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, in U.S. Department of Justice, Bureau of Prisons, Federal Correctional Institution (Ray Brook, New York), 29 FLRA 584 (1987), 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.

The Judge found that the meeting in this case was similar to the meeting in United States Government Printing Office, Public Document Distribution Center, Pueblo, California, 17 FLRA 927 (1985) (GPO). In GPO, management held a meeting with four unit employees to discuss the manner in which the employees were reporting productivity time. During the meeting, employees and management speculated as to the possible reduction in the size of the unit due to a lack of productivity.

The Judge noted that the Authority found in GPO that the discussion "was a routine monitoring function by management." Judge's Decision at 5 (emphasis in Judge's Decision). As stated by the Judge, the Authority found that because the subject matter of the meeting "did not involve 'any personnel policy or practice or other general conditions of employment,'" the meeting was not a formal discussion within the meaning of section 7114(a)(2)(A) of the Statute. Id. at 6. The Judge also noted that the Authority found that the discussion at the meeting as to loss of unit positions was speculative in nature.

The Judge stated that "[w]hile a tenable argument may be made that the discussion herein at the January 4 meeting delved into an area concerning employment conditions, a contrary conclusion is indicated in light of the decision in the [GPO] case[.]" Id. The Judge found that the meeting in this case, like the meeting in GPO, was designed to discuss the manner in which productivity should be reported. The Judge found that the supervisor's reply to the query as to the effect that taking leave would have on productivity, like management's reply in GPO to queries as to the effect of productivity on the size of the unit, was speculative in nature.

The Judge stated that he was "constrained to conclude that the January 4 meeting . . . was likewise a monitoring action. As such, the subject matter did not involve a grievance or any personnel policy or practice or other general condition of employment. Accordingly, the said meeting was not a formal discussion within the meaning of section 7114(a)(2)(A) of the Statute since it did not concern a subject matter within its purview." Id. at 6-7 (footnote omitted). The Judge dismissed the complaint, noting that in light of his conclusion he did not need to decide whether the meeting was a formal one.

IV. Positions of the Parties

A. General Counsel's Exceptions

The General Counsel contends that: (1) the Judge erred in finding that the January 4 meeting did not concern "any personnel policy or practice or other general condition of employment" within the meaning of section 7114(a)(2)(A) of the Statute; and (2) the January 4 meeting was "formal." The General Counsel argues that the meeting was, therefore, a "formal discussion" within the meaning of section 7114(a)(2)(A), and that the Respondent violated the Statute by failing to give the Union the opportunity to be represented at the meeting.

The General Counsel states that it is not disputed that the meeting was a "discussion" or that it involved one or more representatives of the Respondent and one or more employees in the unit. Therefore, "the only elements in dispute are whether the meeting . . . was 'formal' and whether it concerned 'any grievance or personnel policy or practice or other general condition of employment.'" Brief in Support of Exceptions (Brief) at 4. The General Counsel disputes: (1) the Judge's finding that the record does not reflect any details concerning discussions between management and employees about the possible effects of failing to meet the new performance standards; and (2) the Judge's conclusion that although a tenable argument could be made that the discussion at the meeting concerned employment conditions, a contrary conclusion was dictated by the Authority's decision in GPO. General Counsel's Exceptions at 1-2.

The General Counsel states that the record establishes that there was extensive discussion at the meeting about the impact of taking leave on the employees' productivity and performance appraisals, and also that issues as to termination and the appraisal period were raised. Brief at 4-5. The General Counsel argues that the discussions as to leave and performance appraisals were not limited to problems experienced by a single employee and were general conditions of employment within the meaning of the Statute. Id. at 5.

The General Counsel contends that the Judge's reliance on GPO was misplaced because that case is distinguishable from this one. The General Counsel argues that in GPO the Authority "clearly relied primarily for its conclusion on the fact that only four employees were involved and not on any conclusion that the subject matter did not involve conditions of employment." Id. In the instant case, the General Counsel states, the meeting involved the reporting of productivity, a matter that affected the appraisal period and the performance appraisals of all of the employees in the warehouse. In this regard, the General Counsel notes that the matter was bargained about and included in the parties' agreement of February 4, 1988.

The General Counsel contends that this case "is more akin to the meeting" in General Services Administration, Region 8, Denver, Colorado, 19 FLRA 20 (1985) (General Services Administration). In that case, the Authority found that a meeting with several employees concerning compressed work schedules constituted a general discussion of personnel policy which concerned conditions of employment affecting employees in the unit generally and was, therefore, a formal discussion. Brief at 5-6. The General Counsel argues that "similarly, the subject matter discussed at the January 4 meeting was not limited to a discrete application of a personnel policy but rather involved a discussion of how, generally, leave would affect all the employees' productivity for appraisal purposes. The fact that some of the discussion may have involved speculation, such as [the supervisor's] response to the employee's question as to how soon she would be 'out the gate,' does not change the conclusion that other matters discussed involved general working conditions of bargaining unit employees." Id. at 6. The General Counsel contends that, accordingly, the January 4 meeting met the subject matter requirement of the Statute. Id.

The General Counsel also excepts to the Judge's failure to decide whether the meeting was "formal." Exceptions at 3. The General Counsel states that, in determining what constitutes a "formal" discussion or meeting, the Authority considers the totality of the circumstances surrounding a meeting. Brief at 6-7. The meeting was conducted by the supervisor of the warehouse, who, the General Counsel argues, was the second-line supervisor for section 4 employees. The assistant foreman, the immediate supervisor of section 4 employees, was also present. Although no formal agenda was prepared, the employees received notice in advance and the meeting was held away from the employees' workplace. All warehouse employees on duty attended, and all were required to sign an attendance roster. The meeting lasted about an hour. The General Counsel contends that, under these circumstances, the meeting constituted a discussion that was not impromptu or informal, but rather was "formal" within the meaning of the Statute. Id. at 7.

The General Counsel asserts that, because the January 4 meeting called by management included extensive discussion concerning the employees' productivity and performance appraisals, it constituted a formal discussion within the meaning of section 7114(a)(2)(A) of the Statute. The General Counsel contends that the Union was, therefore, entitled to attend, particularly because "matters of productivity and performance appraisals . . . are at the heart of the interests which the Union has the right to protect. And where, as at the January 4 meeting, those matters are raised, questions asked, information and misinformation imparted, the Union's right to be there is manifest." Id. at 8. The General Counsel argues that the Authority should find that the Respondent violated the Statute because the Union was not given the opportunity to be represented at the January 4 meeting. Id.

B. Respondent's Opposition

The Respondent asserts that the Judge was correct in finding that the January 4 meeting was called for the purpose of explaining to employees how to record their work on a required form and that the meeting did not concern a personnel policy, practice or condition of employment within the meaning of the Statute. Respondent's Brief at 3.

The Respondent argues that in General Services Administration, relied on by the General Counsel, the Authority concluded that the purpose of the meeting was the agency's personnel policy in general, whereas in this case the Judge correctly found that the purpose of the meeting was to explain the use of a form and, like GPO, any further discussion was speculative. Id. at 3-4.

The Respondent contends that, even if the Authority finds that the meeting concerned a personnel policy, the meeting was nonetheless not "formal" within the meaning of the Statute. Id. at 4. The Respondent notes that: (1) the meeting was held by supervisors with no involvement or knowledge by higher management; (2) there was no written agenda; (3) the decision to hold a meeting was made the same day; (4) the supervisors told the employees of the meeting informally; and (5) the setting for the meeting was the lunchroom. Id. at 5.

Finally, the Respondent states that the intent of section 7114(a)(2)(A) was "to ensure that Union representatives are present at formal meetings held to discuss personnel policies," and that the January 4 meeting was not such a meeting. Id. at 5-6.

V. Analysis and Conclusions

We find that the January 4 meeting was a formal discussion within the meaning of section 7114(a)(2)(A) of the Statute.

A. Analytical Framework

As the Judge correctly noted, in order to find that a meeting constitutes a "formal discussion" under section 7114(a)(2)(A) of the Statute, it must be shown that: (1) there is 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. Veterans Administration, Washington, D.C. and VA Medical Center, Brockton Division, Brockton, Massachusetts, 37 FLRA No. 60 (1990) (VA Medical Center). Further, in examining these elements, the Authority has held that 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. Id.

As to the first element, we find that the January 4 meeting constituted a discussion. See VA Medical Center. As to the third element, it is undisputed and we find that the January 4 meeting was between one or more representatives of the Agency and one or more unit employees.

B. The January 4 Meeting Concerned a Personnel Policy or Practice or Other General Condition of Employment

The Judge found that the January 4 meeting was a "monitoring action" that did not involve a "grievance or any personnel policy or practice or other general condition of employment" within the meaning of section 7114(a)(2)(A) of the Statute. We disagree.

We agree with the General Counsel that the meeting called by management included extensive discussion concerning the employees' productivity and performance appraisals and, therefore, concerned "personnel polic[ies] or practices or other general condition[s] of employment" within the meaning of section 7114(a)(2)(A) of the Statute.

We do not view the meeting in this case as similar to the meeting in GPO. The meeting in GPO was convened because management wished to determine whether four employees were accurately filling out their work reports. The four employees constituted only a small subcomponent of unit employees who had long been required to fill out work reports. In contrast, the meeting in the case before us involved all the warehouse employees and involved the implementation of a newly-required work report. Accordingly, we do not believe that GPO controls the resolution of the instant case.

The Respondent in this case had set new performance standards and had not yet bargained over the impact of the new standards with the Union when the meeting took place. The DIMES form was also new, as was the requirement that the employees keep the records of production and leave demanded by the form. During the meeting, management explained to employees not only how to fill out the new form, but also explained the new record-keeping requirements and what effect those records would have on employees' performance standards. For example, the supervisor made statements of his understanding as to whether the leave reflected on the forms would be counted against the employees' quantitative production in their performance appraisals. Furthermore, management used the meeting to inform the employees that their performance appraisal period had been changed.

In these circumstances, we find that whether or not the meeting concerned a "personnel policy or practice" when it began, it developed into a discussion concerning a "personnel policy or practice" within the meaning of section 7114(a)(2)(A) that concerned a general condition of employment of all warehouse employees. We note that the General Counsel does not contend that the meeting began as a formal discussion, and we make no determination in this regard.

C. The January 4 Meeting Was "Formal"

The Judge did not decide whether the January 4 meeting was "formal" within the meaning of section 7114(a)(2)(A). We find that the meeting was "formal." In determining whether a meeting is formal, the Authority will look at the totality of the circumstances. VA Medical Center; U.S. Department of Labor, Office of the Assistant Secretary for Administration and Management, Chicago, Illinois, 32 FLRA 465, 470 (1988) (Department of Labor); and Defense Logistics Agency, Defense Depot Tracy, Tracy, California, 14 FLRA 475 (1984).

The supervisor who conducted the meeting had overall authority over the unit and was the second-level supervisor for many of the attendees. The warehouse supervisor testified that he wanted to hold the meeting because the initial forms given to some employees had not been filled out correctly. Accordingly, the meeting was scheduled ahead of time and each employee was notified of the meeting in person by a supervisor. The meeting took place away from the employees' workplace. All employees on duty attended and signed an attendance roster. The meeting lasted about an hour. The supervisor explained to the employees how to fill out the forms, including a record of the leave they used, and informed them that they would be receiving performance appraisals only for the period January through March l988, based on their new performance standards.

We find, in these circumstances, that the January 4 meeting was "formal" within the meaning of section 7114(a)(2)(A) of the Statute. See Department of Labor, 32 FLRA at 470-71.

D. The Union Was Entitled to Safeguard Its Interests and the Interests of Bargaining Unit Employees

In our view, once the meeting became a "formal discussion," the Union was entitled to be given the opportunity to safeguard its interests and the interests of bargaining unit employees. It was in the interest of the Union to know how the new requirements were being explained to employees, particularly in view of the fact that bargaining on the impact and implementation of the new procedures had not yet taken place. Moreover, the Union's presence would have helped to safeguard the interest of the employees as to the impact on them of the new requirements and as to their ability to ask questions and receive answers as to the new personnel policy or practice.

Accordingly, we believe that the Union should have been given the opportunity to be represented at the January 4 meeting. Inasmuch as the Respondent conceded that the Union was not given notice of the meeting, we find that the Union was not given the opportunity to be represented at the meeting, as required by the Statute.

In sum, we find that the January 4 meeting 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 meeting held on January 4 was a formal discussion within the meaning of section 7114(a)(2)(A) of the Statute. By not giving the Union an opportunity to be represented at the meeting, 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 Defense Logistics Agency, Defense Depot Tracy, Tracy, California shall:

1. Cease and desist from:

(a) Conducting formal discussions with its employees in the bargaining unit exclusively represented by the Laborers International Union, Local 1276, AFL-CIO (the Union) concerning any grievance or any personnel policy or practices or other general condition of employment, including performance standards, without affording the Union 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 Tracy, California facilities 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 Commanding Officer of the Base, 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 IX, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply.

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 Laborers International Union, Local 1276, AFL-CIO (the Union) concerning any grievance or any personnel policy or practices or other general condition of employment, including performance standards, without affording the Union 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 IX, Federal Labor Relations Authority, whose address is: 901 Market Street, Suite 220, San Francisco, CA 94103, and whose telephone number is: (415) 744-4000.




FOOTNOTES:
(If blank, the decision does not have footnotes.)