48:0744(77)CA - - DLA, Defense Distribution Region West, Taracy, CA and Laborers' International Union, Local 1276 - - 1993 FLRAdec CA - - v48 p744
[ v48 p744 ]
The decision of the Authority follows:
48 FLRA No. 77
FEDERAL LABOR RELATIONS AUTHORITY
DEFENSE LOGISTICS AGENCY
DEFENSE DISTRIBUTION REGION WEST
LABORERS' INTERNATIONAL UNION
LOCAL 1276, AFL-CIO
DECISION AND ORDER
October 25, 1993
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.(1)
The complaint alleges that the Respondent violated section 7116(a)(1), (5), and (8) of the Federal Service Labor-Management Relations Statute (the Statute) by: (1) conducting a formal discussion with bargaining unit employees without providing the Union an opportunity to be represented at the discussion; and (2) bypassing the Union and negotiating directly with unit employees by surveying them regarding conditions of employment.
The Judge found that the Respondent did not violate the Statute and recommended that the complaint be dismissed in its entirety. Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, we have reviewed the Judge's rulings made at the hearing and find that no prejudicial error was committed. We affirm the rulings. Upon consideration of the Judge's decision, the exceptions and the entire record, we conclude, in agreement with the Judge, that the Respondent did not violate the Statute.(2) Accordingly, we will dismiss the complaint.
The complaint is dismissed.
(If blank, the decision does not have footnotes.)
1. On July 22, 1993, the Authority issued an Order requiring the Respondent to show cause why its opposition should not be dismissed as untimely filed. As the Respondent did not respond to the Order, we have not considered the opposition.
2. The Judge concluded that the alleged formal discussion did not encompass a discussion of conditions of employment and was not formal, within the meaning of section 7114(a)(2)(A) of the Statute. We find it unnecessary to address, and do not adopt, the Judge's finding that the meeting did not concern conditions of employments because we agree with the Judge that the meeting was not formal. In this regard, the meeting lasted only 15 minutes, a first-level supervisor was the only management person in attendance, and that supervisor did not prepare an agenda before the meeting. Although attendance was mandatory, no attendance or minutes were taken. On balance, we conclude that the meeting lacked the requisite formality to satisfy the requirements of section 7114(a)(2)(A) of the Statute.
UNITED STATES OF AMERICA
FEDERAL LABOR RELATIONS AUTHORITY
OFFICE OF ADMINISTRATIVE LAW JUDGES
WASHINGTON, D.C. 20424
DEFENSE LOGISTICS AGENCY, .
DEFENSE DISTRIBUTION REGION .
WEST, LATHROP, CALIFORNIA .
and Case No. SF-CA-20219
LABORERS' INTERNATIONAL UNION,
LOCAL 1276, AFL-CIO .
Charging Party .
Gary J. Lieberman, Esq.
For the General Counsel
Nancy C. Rusch, Esq.
For the Respondent
Before: ELI NASH, JR.
Administrative Law Judge
Statement of Case
This case arose under the Federal Service Labor-Management Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C. § 7101, et seq. (herein the Statute).
Upon an unfair labor practice charge filed by the captioned Charging Party (herein the Union) against the captioned Respondent, the General Counsel of the Federal Labor Relations Authority (herein the Authority), by the Regional Director for the San Francisco Regional Office, issued a Complaint and Notice of Hearing alleging Respondent violated section 7116(a)(1), (5) and (8) of the Statute by surveying employees as part of a management review survey and by holding a formal discussion.
A hearing on the Complaint was conducted in Stockton, California at which all parties were afforded full opportunity to adduce evidence, call, examine and cross-examine witnesses and argue orally. Briefs were filed by Respondent and the General Counsel and have been carefully considered.
Upon the entire record in this matter, my observation of the witnesses and their demeanor and from my evaluation of the evidence, I make the following:
Findings of Fact
1. Sometime in June 1990, several existing supply functions in the San Francisco Bay Area were consolidated, thereby creating the Respondent herein. The Union is the certified exclusive representative of one of the appropriate units of employees located at Defense Depot Tracy (Tracy or DDRW) which was transferred to Respondent's employment as a result of the June 1990 reorganization. As a result of the reorganization, the facility experienced changes not only in personnel, but in working conditions.
2. In January 1992, Marlin Tolbert, Business Manager of the Union, learned from employees in the bargaining unit he represented that Respondent held a meeting in Warehouse 6 concerning a management review questionnaire. The Union did not receive any prior notification of the meeting held on January 9, 1992, or any prior notice of Respondent's decision to conduct a survey of bargaining unit employees as part of the management review.
3. In December 1991, Admiral Brady Cole, Deputy Director, Defense Logistics Agency, requested a Resource Management Review (RMR) be conducted at several DDRW sites, including Respondent beginning on January 5, 1992. The purposes of the RMR as enumerated in a December 5, 1991, Defense Distribution Region West, Resource Management Review, Plan of Action (herein called the RMR Study) were as follows:
1. To identify the Most Efficient Organization (MEO) structure.
2. To determine staffing requirements.
3. To identify potential method improvements as a tool for successfully implementing the MEO.
4. To determine organization/functional relationships and effectiveness of communications.
5. To identify potential changes to the current performance indicators which more accurately reflect performance during peacetime.
6. To prepare in documented form, a report detailing the findings and recommendations resulting from the study.
7. To provide a follow-on assessment of organizational effectiveness to reflect improvements/changes resulting from the RMR.
4. The RMR Study also discussed the methodology of the survey, and the final analysis and reports resulting from the survey. The RMR Study team, which consisted of members from Defense Logistics Agency Headquarters, the Defense Performance Standards Office, and representatives from Respondent, were granted access to Respondent's employees and an Employee Questionnaire was developed that was used during the survey. Twila Gonzales, Chief of the Analysis and Statistics Function, Office of Planning and Resource Management, testified that the list of questions were provided to the analysts if they "chose" to use it. The survey was not used for all the organizations studied by the survey team. In addressing "Data Collection and Analysis", the RMR Study also provided that an Employee Questionnaire may be distributed on-site to Respondent's employees, and that also distribution was contingent upon Region command and Union approval. Although Gonzales maintains that this particular employee questionnaire referenced was not used in the survey, she acknowledged that Union approval of any questionnaire was not sought.
5. Sometime around December 26, 1991, all of Respondent's supervisors and management, were distributed a copy of the RMR Study along with a memorandum from James Canavan, Director, Office of Planning and Resource Management for Respondent. Canavan's memorandum outlined the primary objectives of the survey as reflected in the RMR Study and also maintained that the actual employee questionnaire would not be used until all Union issues had been resolved or permission was received by Respondent's Command. Canavan concluded his letter by informing supervisors:
It is in the best interests of DDRW that we cooperate to the fullest extent possible with the RMR effort. It is critical that information regarding the RMR be shared with the employees.
6. The alleged formal discussion occurred on January 9, 1992. On that date, first line supervisor, Floyd Harp, after receiving Canavan's memorandum, held a meeting in the lunchroom of Warehouse 6 to discuss the management survey, and to distribute copies of the questionnaire to employees in the bargaining unit. Harp also testified that he was told by a higher level supervisor to inform employees about the questionnaire prior to the meeting.
7. The normal procedure for the employees, who are basically material handlers, in Warehouse 6, upon arriving at the worksite for the 7 a.m. shift, was to meet in the lunchroom, at which time the supervisor reads any informational announcements from the Commander, and disseminates job instructions for that day. If a supervisor does not show up after a few minutes, the employees then proceed to the office to see their daily assignments. On January 9, 1992, the employees left the lunchroom and were proceeding towards the office when Harp directed all the employees to return to the lunchroom for a mandatory meeting. Employees who were working the earlier shift, beginning at
6 a.m., were notified by their leaderman to leave the warehouse and report to the lunchroom about 15 minutes before the mandatory meeting commenced. All 8 or 10 were in attendance. Although the lunchroom is located within Warehouse 6, there is no dispute that the employees do not perform their job functions in the lunchroom.
8. At the meeting, Harp discussed the survey, and instructed employees that they would be randomly selected to participate in the survey. Harp distributed a copy of the questionnaire for the purpose of familiarizing employees with the type of questions to be asked. Employees asked Harp questions concerning the random selection process and whether the Union was involved in the survey. Employees also inquired what was the purpose behind the survey, and whether there were going to be any layoffs or RIFs. Harp could not remember any specific questions asked during the meeting. Clearly, he was unable to answer any employee questions or alleviate any employee concerns about the survey. The meeting lasted a total of 15 to 20 minutes.
9. While the Union did not receive prior notification of the meeting held in Warehouse 6, at least two employees from Warehouse 6 were actually surveyed.
10. Tolbert learned of the survey for the first time from employees who attended the meeting in Warehouse 6, who were concerned about the impact of the survey on the bargaining unit. After learning of the survey, Tolbert called Kathleen Tuskes, Chief Labor Relations Office and Doug Harness, Counsel for Respondent, and requested the survey be stopped until the Union was provided copies and an explanation of the purpose of the meetings and the survey.
11. Later, on January 31, 1992, almost a month after the survey began, Tolbert received a brief explanation of the survey from Tuskes, along with a schedule of employees to be surveyed at Respondent between February 3-14, 1992. The Union was never told whether participation in the survey was voluntary, was never given results of the survey, or how the results were used.
12. Bargaining unit employees across the Directorate of Distribution were surveyed. Employees were asked questions from the list of questions distributed to bargaining unit employees at the meeting in Warehouse 6. The introductory statement read by the surveyor included some of the following:
If you have ideas or concerns that we do not have time to discuss or if you think of some later, just write them down and give them to me or call me at _ _ _ _ _ _. Your ideas are very important since we will be making recommendations based on your input.
Included in the questionnaire were specific questions about employees work environment, such as:
8. Do you feel that the condition of the equipment within this workcenter is adequate to do a good job? Do you feel it is safe?
. . .
11. Is there anything that could be done to make your job easier. Explain.. . .
14. If you were in charge, what changes would you make to improve your organization? Why?
15. Do you have any concerns you would like to discuss?
Although Gonzales testified that the questionnaire submitted into evidence by the General Counsel was never distributed, employee Jimmy Cuizon, who was one of two employees from the warehouse surveyed testified that he was asked questions from that questionnaire. Further, Harp testified that he passed out copies of the questionnaire at the January 9, 1992 meeting.
The results of the survey were tabulated, and along with other observations, a 600 page final report was compiled on April 29, 1992.
In this case, Respondent asserts, in essence, that it did not attempt to negotiate directly with employees when soliciting information from them concerning the efficiency of its operations. It also maintains that the announcement of the visit of a management review team was not a subject matter which is either a personnel policy or a condition of employment. The undersigned agrees with the Respondent in both instances.
Here, it was established that the purpose of the questioning by management analysts was not an attempt to negotiate directly with employees nor was it done in the course of negotiations with the exclusive bargaining representative. Unfortunately, the Union was not notified of the purpose of the survey nor was it provided the survey, because no formal survey was prepared.
In the Federal sector some leeway to gather information from employees to ensure efficiency and effectiveness of an agency's operations has been clearly established. Internal Revenue Service, 19 FLRA 353 (1985), enforced sub nom. NTEU v. FLRA, 826 F.2d 114 (D.C. Cir., 1987). In adopting the court's position, the Authority determined that employee polling issues are to be analyzed on an issue by case basis with consideration given to "the nature of the information sought by the poll, the manner in which the poll is conducted, how the information is used, and similar relevant factors." Department of the Treasury, Internal Revenue Service, Washington, D.C. and Internal Revenue Service, Indianapolis, Indiana District Office, 31 FLRA 832 (1988).
In the above case, the Authority made it clear that polling of employees in anticipation of changes in conditions of employment does not always constitute a violation of the Statute. Here, the questionnaire did contain some questions relating specifically to conditions of employment. All questions contained in the questionnaire, however, did not relate to conditions of employment. The questions which do relate to conditions of employent establish that at least some of the information sought by the poll was bargainable. Notwithstanding the fact that some questions in the survey related to conditions of employment, the undersigned does not believe there is a violation of the Statute, since the manner in which the questionnaire was distributed must also be examined. In my view, the General Counsel's case, collides with the reality of the situation for it appears that this study was an acceptable information gathering devise used by management to "determine the most efficient organization and its staffing requirements." The Authority has always recognized that management musthave "the latitude to gather information, including opinions, from unit employees, to ensure the efficiencyand effectiveness of its operations." IRS, supra. This is such a situation. The major consideration for this study, of course, was the reorganization of all the supply functions in the San Francisco Bay Area creating the necessity that the new Agency make some sense of its operations. Thus, the focus of the study was on performance indicators related to the "mission" of the agency rather than the performance of employees. Furthermore, there is no showing that Respondent intended to put any portion of the RMR study into operation prior to negotiations nor has it done so. While one might anticipate that the study was made to allow the Respondent to make some changes in conditions of employment, one is not licensed to second guess its intentions. In my view, the major reorganization which took place here is the significant, relevant, factor to be considered in this case where the purpose of the study was to review the newly created organization and to maximize the agency's operations possibly with or without having to make some changes in conditions of employment. When weighing an exclusive representative's rights to be informed of such studies against an agency's need to create an efficient and effective organization, it is almost certain that the balance would be struck, in most instances, favoring the agency. Furthermore, there is insufficient record evidence indicating that the questionnaires were used or intended to be used to negotiate "directly with unit employees concerning their conditions of employment or in any manner created the appearance of doing" so. IRS, supra. Finally, it is noted that no changes have resulted from the survey or questionnaire nor is there any hint from the record that any changes in conditions of employment would ever be implemented without negotiations with the exclusive representative.
Based on the foregoing, it is concluded that the RMR study did not infringe on employee rights or the rights of the Union and, therefore it is found that Respondent's conduct herein did not constitute a violation of section 7116(a)(1) and (5) of the Statute.
It is widely recognized that an exclusive representative must be given the opportunity to be represented at formal discussions concerning any grievance, personnel policy or general conditions of employment under the Statute. Here, the subject matter of the unplanned meeting was the visit of the management review team. Respondent submits that the announcement of the visit was not a subject matter which is either a personnel policy or condition of employment. Consistent with the earlier finding that the RMR study itself was not violative of the Statute, it is also the opinion of the undersigned that the announcement that a survey team was going to make a study was also not in violation of the Statute.
It also does not appear that the meeting was a formal discussion under criteria set out by the Authority. The law is well settled regarding the factors the Authority will examine to determine whether a meeting is formal within the meaning of the Statute. All eight factors are to be taken in totality: (1) whether the meeting was held by a first-level supervisor or someone higher; (2) whether other management representatives attended; (3) where the meeting took place; (4) how long the meeting lasted; (5) how the meeting was called; (6) whether a formal agenda was established;
(7) whether attendance was mandatory; and (8) the manner in which the meeting was conducted (whether comments were noted or transcribed). Marine Corps Logistics Base, Barstow, California, 45 FLRA 1332 (1992); Department of Labor, Office of the Assistant Secretary for Administration and Management, Chicago, Illinois, 32 FLRA 465 (1988).
In this case, the meeting was held with the first-level supervisor the only management person in attendance, the meeting took place in the lunch room of the warehouse, lasted for only about 15 minutes, and no attendance was taken. The supervisor did not prepare an agenda before the meeting and did not summarize the meeting afterward. The supervisor merely made an announcement that a questionnaire would be distributed by a management analyst. Additionally, employee questions and concerns about the survey will not convert a meeting where conditions of employment, a prerequisite to any finding that a meeting is a formal discussion, into a formal discussion. It is my view, that even where some of the criteria of a formal discussion are met, the discussion must center around conditions of employment announced by the agency. Here, employees asked questions about all their concerns, some of which had little or nothing to do with the survey. The supervisor was unable to answer questions, primarily because he was there only to distribute the survey. His inability to answer any employee questions is a good indicator that his job was merely to distribute the questionnaires and not to discuss conditions of employment. Thus, the meeting never developed into a discussion of conditions of employment. See for example, U.S. Department of Defense, Defense Logistics Agency, Defense Depot, Tracy, Tracy, California, 37 FLRA 952(1990). Therefore, it is found that the meeting held on January 9, 1992 in Warehouse 6 did not constitute a formal discussion. This meeting clearly does not fit the criteria of a formal discussion within the meaning of