38:0671(61)CA - - Army, New Cumberland Army Depot, New Cumberland, PA and AFGE Local 2004 - - 1990 FLRAdec CA - - v38 p671
[ v38 p671 ]
The decision of the Authority follows:
38 FLRA No. 61
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF THE ARMY
NEW CUMBERLAND ARMY DEPOT
NEW CUMBERLAND, PENNSYLVANIA
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
DECISION AND ORDER
November 30, 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 and by the Union to the attached decision of the Administrative Law Judge. The Respondent filed oppositions to the General Counsel's and to the Union's exceptions.
The complaint alleged that the Respondent violated section 7116(a)(l) and (8) of the Federal Service Labor-Management Relations Statute (the Statute) when it conducted a formal discussion within the meaning of section 7114(a)(2)(A) of the Statute with bargaining unit employees without providing the Union an opportunity to be represented at the discussion. The Judge found that the Respondent had not violated the Statute and 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. For the reasons stated below, we find, contrary to the Judge, that the Respondent violated the Statute. We adopt the Judge's findings, conclusions and recommendations only to the extent consistent with this decision.
II. Facts (*)
The events in this case involved the morning tour of duty. Each tour of duty ordinarily begins with a roll call. Management then hands out work assignments to bargaining unit employees and often holds "safety meetings" with the employees. Management held such a safety meeting on the morning of April 20, 1988. It also held such a safety meeting on the morning of April 21. Later in the day on April 21, another meeting, called by Frank Turner, the Respondent's branch chief, was held.
Turner conducted the safety meeting (the meeting in question) on April 20 or 21. While Turner was speaking, several employees, including David Best, a unit employee and Union Steward, asked questions of Turner about the Agency's plans to implement a new compressed work schedule (CWS) that was the subject of a recent agreement with the Union. Turner made some brief, general remarks about the subject, and Best sought to respond.
Best testified that at the meeting in question, Turner began to explain to employees how the CWS was going to work. When Best tried to "add to or correct" what Turner had said, Turner "shut him off, telling Best that if he had anything to say, he should tell Turner, and that Turner would decide what the employees would hear." Judge's Decision at 3. Best also testified that at the end of the meeting Turner announced that there would be another employee meeting that afternoon concerning CWS. At the afternoon meeting, according to Best, Turner briefed the employees, opened the meeting for questions, and then asked Best if he had anything to say "as a rank and file member." Id. Best testified that he declined to speak.
Turner testified that during the meeting in question, Best raised a question about CWS, and Turner told Best to "hold off on that because [Turner] had insufficient information." Id. Turner testified that after receiving CWS training, he then scheduled a meeting to be held after lunch on April 21. According to Turner, he told employees at the afternoon meeting "that Best, 'the union representative, would like to discuss the compressed work schedule' with them" and that Best declined to speak. Id. at 4.
The parties agreed, as to the latter meeting on April 21, that: (1) the meeting was conducted by Turner; (2) Turner briefed the employees on a recent agreement with the Union on the subject of compressed work schedules; (3) Turner entertained questions from employees and invited Best to add his own comments; (4) Best declined to comment; and (5) the meeting was a "formal discussion" within the meaning of the Statute. Id. at 2.
III. Administrative Law Judge's Decision
This case concerns whether Turner's actions at the meeting in question unlawfully interfered with the Union's statutory right to be represented at a formal discussion. The Judge found the disputes about some of the facts to be inconsequential and not relevant to the central issue. He, therefore, did not decide whether at the second meeting on April 21, Turner invited Best to speak as a Union representative or as a "rank and file member," because no unfair labor practice was alleged to have occurred at that meeting. The Judge also did not decide whether the meeting in question was the meeting held on April 20 or the first meeting held on April 21. The Judge found that the Respondent had admitted only that the second meeting on April 21 was a formal discussion, and had not stipulated that the meeting in question was a formal discussion.
The Judge stated that his primary concern was "whether [the meeting in question] was a 'formal discussion' on the subject of compressed work schedules[.]" Judge's Decision at 5. The Judge added that "if it was, Turner's silencing of Best at least arguably ran afoul of section 7114(a)(2)(A)," citing U.S. Nuclear Regulatory Commission, 21 FLRA 765, 767-68 (1986) (Nuclear Regulatory Commission). Id. The Judge found that "no serious legal issue of this kind arises unless the credible evidence is persuasive that the meeting in question concerned CWS." Id. The Judge found that "the General Counsel has not sustained his burden in this respect." Id.
In deciding what occurred at the meeting in question, the Judge found that "the truth lies somewhere in between the accounts of the opposing witnesses." Id. at 6. The Judge found that when the employees raised questions about CWS, "Turner put them off, adverting to a future meeting." Id. The Judge stated that he was "not persuaded that Turner addressed this subject formally," but that Turner "was not adamant in his rebuffing of all questions concerning CWS, so that he may have attempted to answer one or more, to the extent that Turner made comments that were sufficient to move Best to seek to respond." Id. The Judge found that Turner's remarks as to CWS "were limited in light of his intention to conduct a full meeting on the subject in the near future, and did not rise to the level of a 'formal discussion' of this subject." Id. In reaching this conclusion, the Judge acknowledged that "significant 'formal' aspects attended the meeting." Id. at n.3. The Judge found, however, that he need not decide whether the entire meeting was a formal discussion, but only whether the discussion of CWS at the meeting was a formal discussion.
The Judge concluded that "the General Counsel has not proved by a preponderance of the credible evidence that the Respondent conducted a 'formal discussion' of the subject of compressed work schedules at which it denied the Union the opportunity to be represented." Id. at 6-7. The Judge, accordingly, recommended that the complaint be dismissed.
IV. Positions of the Parties
A. Union's Exceptions
The Union excepts to the Judge's failure to give adequate weight to the testimony of the Union's witnesses and to his failure to find that: (1) Turner had full knowledge of the impending CWS before the meeting in question took place; (2) the meeting in question took place on April 21, not on April 20; and (3) at the afternoon meeting on April 21, Turner referred to Best as a rank and file member and not as a representative of the Union. The Union excepts to the Judge's conclusions as a result of his failure to find these facts and contends that the Judge's decision should be overturned.
B. General Counsel's Exceptions
The General Counsel excepts to the Judge's failure to find that Turner conducted the meeting in question on the morning of April 21, not on April 20. General Counsel's Brief In Support of Exceptions at 2, 5. The General Counsel also excepts to the Judge's failure to find that the parties stipulated that the meeting in question, whenever it took place, was a formal discussion within the meaning of the Statute. Id. at 5. The General Counsel excepts to the Judge's finding that because the discussion of one particular topic (the compressed work schedule) was not "substantial" or "formal," the entire meeting was not a formal discussion. Id. at 5-6. Finally, the General Counsel argues that the Authority should find, as alleged in the complaint, that the meeting in question was a formal discussion and that the Union was not provided an opportunity to be represented because the Respondent prohibited the participation of the Union's representative. Citing Nuclear Regulatory Commission, the General Counsel argues that, once the topic of CWS was introduced, the Union was entitled to participate fully in a discussion of the topic. Id. at 7-8.
C. Respondent's Oppositions to Exceptions
The Respondent argues that the weight of the evidence supports the Judge's finding that the meeting in question was held on April 20, not on April 21. Respondent's Opposition to General Counsel's Exceptions at 1. The Respondent asserts that the Judge was correct in finding that the Respondent stipulated only that the latter meeting on April 21 was a formal meeting. Id. at 2. The Respondent contends that the Judge "correctly applied the test of 'the totality of the facts and circumstances.'" Id. According to the Respondent, the Judge correctly found that the questions raised by employees about CWS did not amount to a formal discussion of that subject. Id. at 1-2. The Respondent asserts that the meeting in question was nothing more than a safety meeting, during which questions about CWS were raised by employees, and management did nothing more than defer the subject. The Respondent argues, therefore, that there was no "discussion" of CWS and that the mere raising of the subject should not be found to have transformed the meeting into a formal discussion. Respondent's Brief In Opposition to General Counsel's Exceptions at 5-6.
V. Analysis and Conclusions
A. Preliminary Findings
We note that, according to the testimony of Turner, the meeting in question occurred on the morning of April 20 and, according to Best, it occurred on April 21. However, in agreement with the Judge, we find that resolution of the unfair labor practice complaint before us does not require us to decide whether the meeting in question took place on April 20 or April 21. We also find, in agreement with the Judge, that the manner in which Turner addressed Best at the second meeting on April 21 is not relevant to a decision in this case, as the unfair labor practice complaint did not allege that the Respondent's actions at that meeting violated the Statute.
The General Counsel excepts to the Judge's finding that the Respondent did not stipulate that the meeting in question was a formal discussion. The Judge's finding is supported by the position of the Respondent in its post-hearing brief to the Judge (at 4-5) and by its position taken at the hearing (Transcript at 63). However, because we find below that the meeting in question was a formal discussion, it is unnecessary to pass on this exception.
B. Analytical Framework
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. Veterans Administration, Washington, D.C. and VA Medical Center, Brockton Division, Brockton, Massachusetts, 37 FLRA No. 60 (1990) (VA Medical Center); and U.S. Department of Justice, Bureau of Prisons, Federal Correctional Institution (Ray Brook, New York), 29 FLRA 584, 588-89 (1987) (Ray Brook).
In determining whether a discussion or meeting is "formal," a number of factors are relevant, and we must consider the totality of the facts and circumstances presented. U.S. Department of Labor, Office of the Assistant Secretary for Administration and Management, Chicago, Illinois, 32 FLRA 465, 470 (1988). Also, in applying the analytical framework, we 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. VA Medical Center; and Ray Brook.
We have held that no actual discussion or dialogue is needed for a meeting to be a "formal discussion." See, for example, VA Medical Center; and Department of Defense, National Guard Bureau, Texas Adjutant General's Department, 149th TAC Fighter Group (ANG)(TAC), Kelly Air Force Base, 15 FLRA 529, 532-33 (1984). We have also held that even if a meeting does not begin as a formal discussion, it may nonetheless develop into or become a formal discussion. Defense Logistics Agency, Defense Depot Tracy, Tracy, California, 37 FLRA 952, 960 (1990) (Defense Depot Tracy).
C. The Meeting in Question Was a Formal Discussion at Which the Union Was Denied the Right to Be Represented
The meeting in question was attended by supervisors and unit employees. Turner testified that he was there to conduct the meeting for the purpose of discussing safety. He also testified that he was there because of "rumors floating around on the floor" about CWS and "that employees were coming to me and asking me about them." Transcript at 64, 69. The subject matter of safety concerns a general condition of employment. The subject matter of CWS also concerns a general condition of employment, and CWS was introduced at the meeting. As the meeting in question constituted a discussion, which was formal, between management and unit employees concerning general conditions of employment, we find that the meeting was a formal discussion within the meaning of section 7114(a)(2)(A) of the Statute.
When a formal discussion takes place, a union representative has a right to participate in the discussion; that is, to comment, speak, and make statements. Nuclear Regulatory Commission. On the other hand, this right does not entitle a union representative to take charge of, usurp, or disrupt the meeting. Id. In Nuclear Regulatory Commission, management called a meeting for the purpose of explaining to employees the effects of a reorganization. After management had explained certain new procedures, the designated union representative attempted to explain his understanding of the procedures. Management's representative interrupted him several times and directed employees to see their union steward on the matter. The Authority found that the union representative had been effectively prevented from speaking on the subject, and that the agency had violated the union's right under section 7114(a)(2)(A) of the Statute to be represented at a formal discussion.
In this case, during the course of the meeting, employees raised the question of CWS, a general condition of employment. While Turner testified that he had not yet been briefed about CWS, the Respondent and the Union had already reached some agreement on the matter and Turner had been informed of the employees' concern over "rumors" about CWS. Transcript at 64 and 69. As found above, Turner began to explain CWS and may have responded to questions from employees, but Turner did not allow Best to comment. The fact that Turner was unprepared to discuss CWS in detail, and that he assured the employees that the topic would be fully discussed at a future meeting is not dispositive of whether Best had a right to be heard and to finish speaking on the topic during the meeting.
We find that the Union was entitled to participate in a discussion of CWS; that is, to comment, speak, and make statements. The Respondent acknowledges that Best was not allowed to participate in the discussion of CWS. The Respondent's counsel stated in his Post-hearing Brief to the Judge that "at a morning safety meeting, Union Steward David Best attempted to offer his comments on a pending Compressed Work Schedule test plan" and that Best "was not allowed to speak on the Compressed Work Schedule" (Brief at 5, 4). At the hearing, counsel stated that by the time of the second meeting on April 21, Best "had had his feelings hurt by being denied the opportunity to speak at the earlier safety meetings." Transcript at 63. Further, in the Opposition to Exceptions Filed by the General Counsel, counsel states that management, following the meeting in question, observed Best "in discussion with other employees and [Best] seemed upset at not being allowed to talk about compressed work schedule at the safety meeting." Opposition at 3.
In our view, this is not a case where a union representative attempted to interject a topic unrelated to the nature of the meeting being held, or a topic about which management was totally unfamiliar. Further, there is no indication that Best was attempting to take charge of, usurp, or disrupt the meeting. The meeting was a formal discussion from the outset, and by effectively preventing Best from participating, the Union was denied the right to be represented at the discussion. We therefore conclude that, in the circumstances of this case, the Respondent failed to comply with the provisions of section 7114(a)(2)(A), and violated section 7116(a)(1) and 7116(a)(8) of the Statute, as alleged in the complaint.
Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, the New Cumberland Army Depot, New Cumberland, Pennsylvania shall:
1. Cease and desist from:
(a) Conducting formal discussions with its employees in the bargaining unit exclusively represented by the American Federation of Government Employees, AFL-CIO, Local 2004 (the Union) concerning any grievance or any personnel policy or practices or other general condition of employment, including compressed work schedules, without affording the Union a proper opportunity to participate in and 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 New Cumberland, Pennsylvania 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 Depot, 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 II, 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 American Federation of Government Employees, AFL-CIO, Local 2004 (the Union) concerning any grievance or any personnel policy or practices or other general condition of employment, including compressed work schedules, without affording the Union a proper opportunity to participate in and 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 right assured by the Federal Service Labor-Management Relations Statute.
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 II, Federal Labor Relations Authority, whose address is: 26 Federal Plaza, Room 3700, New York, NY 10278, and whose telephone number is: (212) 264-4934.
(If blank, the decision does not have footnotes.)
*/ The Union excepts to certain credibility findings made by the Judge. The demeanor of witnesses is an important factor in resolving issues of credibility, and the Judge has had the benefit of observing the witnesses while they testified. We will not overrule a Judge's determination regarding credibility of witnesses unless a clea