52:0149(17)CA - - F.E. Warren AFB, Cheyenne, WY and AFGE, Local 2354 - - 1996 FLRAdec CA - - v52 p149
[ v52 p149 ]
The decision of the Authority follows:
52 FLRA No. 17
FEDERAL LABOR RELATIONS AUTHORITY
F.E. WARREN AIR FORCE BASE
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
DECISION AND ORDER
September 19, 1996
Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Donald S. Wasserman, Members.
I. Statement of the Case
This case is before the Authority on exceptions filed by the Respondent to the Judge's recommended decision and order. The General Counsel filed cross-exceptions to the remedy ordered by the Judge and an opposition to the Respondent's exceptions.(1)
The consolidated complaint alleges that the Respondent conducted formal discussions with employees without notifying the Union. The Judge concluded that the Respondent violated section 7116(a)(1) and (8) of the Federal Service Labor-Management Relations Statute (the Statute), as alleged in the complaint.
Upon consideration of the Judge's decision and the entire record, and for the following reasons, we adopt the Judge's findings and conclusions that the Respondent violated section 7116(a)(1) and (8) of the Statute. As discussed in detail infra, we do not grant the specific remedy requested by the General Counsel.
II. Background and Judge's Decision
A. The Rivet Mile meeting (Case No. DE-CA-30519)
In early 1993, it became apparent that a reduction in force (RIF) would occur at Respondent's "Rivet Mile" missile servicing operation. Management conducted several meetings during March and April 1993 with Rivet Mile employees to discuss the RIF. The Judge found that one of the meetings was held between the General Manager of the Rivet Mile section and 12 or 13 employees "sometime in March." Judge's Decision at 11. According to the Judge, the General Manager met with the employees in his office for 20 or 30 minutes and told them that they were likely targets in the RIF, that they should be careful about their budgets, and that he was trying to obtain information about buyouts.
The Judge enumerated eight factors to be considered when determining whether a discussion is formal,(2) noting that "[a]ll eight factors are to be taken in totality." Id. at 9. He then determined, without making express findings on the factors, that the Rivet Mile meeting was a formal discussion. As the Union was not notified of the meeting or represented at it, the Judge concluded that the meeting was conducted in violation of section 7116(a)(1) and (8) of the Statute.(3)
B. The Boiler Plant Meeting (Case No. DE-CA-30791)
On May 25, 1993, management conducted a meeting unrelated to the Rivet Mile RIF with five or six employees from the Respondent's boiler plant in the employees' break room. According to the Judge, the Respondent's Chief of Employee and Labor Relations arranged the meeting to learn whether any of the employees were interested in accepting buyouts to make room for employees who were to be displaced because of the closing of Wurtsmith Air Force Base in Michigan. The Judge found that the meeting was conducted by the Chief and one of her subordinates, and was also attended by various boiler plant supervisors, including the employees' first level supervisor. The Judge also found that the meeting lasted between 15 and 45 minutes and that no one from the Union was notified of the meeting or attended.
The Judge made specific findings on the eight factors he had previously identified. As relevant here, and in addition to the factual findings set forth above, the Judge found that: (1) the Chief of Employee and Labor Relations used a message received from Headquarters, Air Combat Command as an agenda for the meeting; (2) attendance at the meeting was mandatory; and (3) the meeting was conducted "in a manner that made it possible for [the Chief of Employee and Labor Relations] to prepare a handwritten list of interested employees," and for her subordinate to construct, two weeks later, "an outline of what was presented." Id. at 15.
The Judge identified the testimony of the Chief of Employee and Labor Relations as his source for his findings. Based on that testimony, he determined that the meeting was a formal discussion, and that the Respondent violated section 7116(a)(1) and (8) by conducting it without notifying the Union in advance.
C. The Judge's Recommended Remedy
The Judge recommended an order directing the Respondent to cease and desist from conducting formal discussions, "including discussions of financial incentives for employees to retire or resign," without notifying the Union in advance. Id. at 15. He also recommended that the Respondent post a corresponding notice to employees. The Judge rejected as "unwarranted" that portion of the General Counsel's proposed remedy that would have required the Respondent's commanding officer to issue a memorandum to all supervisors and managers reminding them of their duty to notify the Union before conducting formal discussions with unit employees. Id. at 15 n.12.
III. Positions of the Parties
A. The Respondent
The Respondent argues that the Rivet Mile meeting was never alleged as a violation in the complaint. According to the Respondent, the only meeting concerning buyouts alleged in the complaint, or referenced in the General Counsel's opening statement, was the May 25 meeting. The Respondent adds that neither the complaint nor the General Counsel's opening statement provided "specific dates and times that the alleged violations occurred." Exceptions at 1. As a result, the Respondent argues that it was unaware of "how many alleged formal discussions to defend at the hearing." Id. at 1-2.
The Respondent also argues that the Judge erred in failing to make specific findings that the Rivet Mile meeting met the eight factors for a formal discussion identified by the Judge. The Respondent asserts that the evidence does not show that the meeting (which it characterizes as "an information dissemination briefing") was mandatory, how it was scheduled, or whether it followed a formal agenda. Id. at 3. The Respondent also excepts to the Judge's refusal to permit an employee of the Respondent's Civilian Personnel Office to testify that "there were no formal discussions on financial incentives involving personnelists until April 6 or 8, 1993." Id. at 2.
With regard to the May 25 meeting with the boiler plant employees, the Respondent asserts that the meeting was called merely to "disseminate information to employees eligible for the financial incentive." Id. In addition, the Respondent specifically disputes certain of the Judge's findings about the formality of the meeting. In particular, the Respondent asserts that the meeting had no agenda, was not mandatory, lasted no more than 20 minutes, and was not recorded in notes or minutes.
B. The General Counsel
1. Opposition to the Respondent's Exceptions
The General Counsel asserts that, in excepting to the Judge's conclusion that the two disputed meetings constituted formal discussions, the Respondent is "merely quarreling with the [Judge's] credibility determinations." Opposition at 3. As to the Respondent's claim that the Judge improperly refused to allow testimony from the Civilian Personnel employee, the General Counsel argues that the employee in question attended the hearing as a technical advisor to the Respondent's counsel and, therefore, was not sequestered like all the other witnesses in the case. According to the General Counsel, the Respondent waived its right to call the employee as a witness by not objecting to the General Counsel's motion for sequestration at the opening of the hearing.
The General Counsel excepts to the Judge's failure to recommend an order directing the Respondent's commanding officer to issue a memorandum reminding supervisors and managers of their obligations under section 7114(a)(2)(A) of the Statute. According to the General Counsel, such an order is necessary and would be neither onerous nor punitive. The General Counsel contends that the Respondent's Chief of Employee and Labor Relations was served with a copy of the charge regarding the Rivet Mile meeting before conducting the May 25 meeting with boiler plant employees and, therefore, must have known that the Respondent had an obligation to notify the Union before conducting the later meeting.
IV. Analysis and Conclusions
A. The Respondent Had Sufficient Notice of the Allegation Regarding the Rivet Mile Meeting
The complaint, like counsel for the General Counsel's opening statement, does not specify that the Rivet Mile meeting involved financial incentives. Also, the complaint does not allege the precise date or time that the Rivet Mile meeting took place. The complaint does, however, clearly allege that the General Manager of the Rivet Mile section held more than one short meeting in his office with Rivet Mile employees in March 1993 to discuss the impending RIF without notifying the Union. The counsel for the General Counsel essentially repeated this allegation in her opening statement.
The Authority has repeatedly affirmed the importance of giving a respondent adequate notice of the allegations against it, and has dismissed complaints where such notice was not given. E.g., American Federation of Government Employees, Local 2501, Memphis Tennessee, 51 FLRA 1657, 1660 (1996). However, even where a complaint is silent or ambiguous about specific issues that are later raised at the hearing, the Authority may still consider and dispose of those issues if the record shows that they were fully and fairly litigated. See generally U.S. Department of Labor, Washington, D.C., 51 FLRA 462, 467 (1995); U.S. Department of Health and Human Services, Health Care Financing Administration, 35 FLRA 491, 494 (1990).
The complaint in this case identified the general subject matter of the alleged formal discussions (the Rivet Mile RIF), named the official who conducted them (the Rivet Mile General Manager), gave their location (the General Manager's office), and set out the approximate time period when they occurred (March 1993). The Respondent was, thereby, on notice that it was liable for all formal discussions related to the Rivet Mile RIF that the General Manager conducted in his office during March 1993 without notifying the Union. As such, we conclude that the Respondent has not demonstrated that it was denied an opportunity to fully and fairly litigate the violation found by the Judge. We note, in this regard, that the General Manager acknowledged at the hearing that he "did have a meeting in March [with Rivet Mile employees] that discussed the incentives from Hill." Transcript at 88. Moreover, the Respondent concedes that the General Counsel's evidence establishes that a March 1993 meeting "on financial incentives involving bargaining unit employees" did occur. Respondent's Exceptions at 3.
B. The Judge Did Not Err in Precluding Testimony from the Civilian Personnel Employee
At the opening of the hearing, counsel for the General Counsel, without objection from counsel for the Respondent, made a motion to sequester the witnesses. The Judge then ordered the witnesses sequestered. An employee of the Respondent's Civilian Personnel Office (hereinafter the CPO employee) sat with counsel for the Respondent throughout the hearing. When counsel for the Respondent called the CPO employee as a witness, counsel for the General Counsel objected, invoking the Judge's sequestration order. The Judge sustained the objection but allowed counsel for the Respondent to make an offer of proof as to the employee's testimony. Counsel for the Respondent represented that the employee would have testified that she never attended any Rivet Mile meetings in March 1993, to rebut testimony from one of the General Counsel's witnesses that the CPO employee was present at such a meeting. The Judge found that the General Counsel's witness appeared to be testifying about a meeting other than the Rivet Mile meeting at issue here, and did not rely on that testimony in concluding that the Rivet Mile meeting violated the Statute.
The Respondent's attempt to present the CPO employee as a rebuttal witness, when all the other witnesses had been sequestered, was plainly inconsistent with the Judge's sequestration order, to which the Respondent did not object. The Judge therefore correctly refused to permit the CPO employee to testify. Moreover, the Judge did not rely on the testimony that the CPO employee's testimony was intended to rebut. In these circumstances, we affirm the Judge's ruling.
C. The Rivet Mile Meeting Was a Formal Discussion
For the Authority to conclude that a formal discussion occurred, the evidence must show that there was (1) a discussion, (2) that was "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. E.g., U.S. Department of Justice, Bureau of Prisons, Federal Correctional Institution (Ray Brook, New York), 29 FLRA 584 (1987) (Ray Brook), aff'd sub nom. American Federation of Government Employees, Local 3882 v. FLRA, 865 F.2d 1283 (D.C. Cir. 1989). In making determinations under section 7114(a)(2)(A), the Authority is "guided by that section's intent and purpose--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." Ray Brook, 29 FLRA at 589.
There is no dispute that the Rivet Mile meeting was a discussion between representatives of the Respondent and unit employees concerning a grievance, personnel policy, practice, or other general condition of employment. The only issue is whether the discussion was "formal."
1. "Formality" under section 7114(a)(2)(A)
The predecessor to the Statute, Executive Order 11491, as amended, expressly authorized unions to be represented at formal discussions.(4) However, the adjective "formal" did not appear in the first draft of the legislation ultimately enacted as the Statute. Title VII of H.R. 11280, as reported July 31, 1978, originally provided at section 7114(a)(1) that an exclusive representative was entitled to be represented at "any discussion between one or more representatives of the agency and one or more employees in the unit or their representatives concerning any grievance, personnel policy or practice, or other conditions of employment." Legislative History of the Federal Service Labor-Management Relations Statute, Title VII of the Civil Service Reform Act of 1978 (Comm. Print 1979) (Legislative History) at 314 (emphasis added). The amendment to Title VII offered by Representative Udall, which was eventually accepted as the language of the Statute, replaced "any discussion" with "any formal discussion."(5) The Udall amendment inserted "the word 'formal' before discussions to make clear that this subsection does not require that an exclusive representative be present during highly personal, informal meetings such as counseling sessions regarding performance." Legislative History at 957 (124 Cong. Rec. 29,200).
This illustration of a meeting that would not be a formal discussion describes both the purpose of the meeting (e.g., counseling an employee about performance) and its nature ("highly personal"). The Authority has similarly examined both the purpose and the nature of discussions in determining formality under section 7114(a)(2)(A).
In some cases, the Authority has found the purpose of the discussion sufficient in itself to establish formality. For example, "[t]he Authority has repeatedly held that interviews by agency representatives with bargaining unit employees in preparation for third-party proceedings, including MSPB proceedings, are formal discussions." United States Immigration and Naturalization Service, United States Border Patrol, El Paso, Texas, 47 FLRA 170, 183 (1993).(6) In other cases, the Authority has considered the purpose of a discussion as relevant in assessing its formality. E.g., Marine Corps Logistics Base, Barstow, California, 45 FLRA 1332, 1335-36 (1992).
In addition to the purpose of a discussion, the Authority has identified a number of factors that also are relevant in determining whether the nature of the discussion indicates formality. It was these factors to which the Judge adverted in this case.(7) The enumeration of these factors has varied. E.g., U.S. Department of Justice, Bureau of Prisons, Federal Correctional Institution, Bastrop, Texas, 51 FLRA 1339, 1343 (1996); General Services Administration, Region 9, 48 FLRA 1348, 1355 (1994). This variation demonstrates that the factors are merely illustrative:
Other factors may be identified and applied as appropriate in a particular case. Therefore, in determining formality, we 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) (Department of Labor).
2. Application of Formality Requirements to Rivet Mile Meeting
Although the Judge made no express findings on any of the eight factors identified in Department of Labor, the record is sufficient to make a determination on many of the factors. This evidence, on balance, supports the conclusion that the Rivet Mile meeting was formal.(8)
However, even if evidence regarding the factors did not indicate formality, the undisputed purpose and subject matter of the meeting was to inform employees, apparently for the first time, that they were targets in the RIF, that they could be laid off, and that buyouts might be available for them. We find it highly implausible that the head of the Rivet Mile project, or any other second level supervisor, would leave an announcement of such gravity to a spontaneous, casual encounter with affected employees.
As the Authority stated in Department of Labor, "in determining formality, we consider the totality of the facts and circumstances presented." Id. at 470. The totality of the facts and circumstances here is that the Rivet Mile meeting was called to prepare employees to be laid off and, in that context, we conclude that the Rivet Mile meeting was a formal discussion of which the Union should have been notified in advance. Evidence that a number of the Department of Labor factors were also present bolsters this conclusion.
D. The Boiler Plant Meeting Was a Formal Discussion
The boiler plant meeting was called to announce that buyouts might be available and to determine whether any employees were interested in accepting them. As this context indicates less strongly that the meeting was formal, the presence or absence of other factors, such as those identified in Department of Labor, assumes greater importance in our analysis.
The Respondent excepts to the Judge's findings on four of the eight Department of Labor factors. The first of these is the Judge's finding that the Chief of Employee and Labor Relations used the message received from Combat Command as a formal agenda "in addressing her remarks" at the meeting. Judge's Decision at 15. In this regard, the Chief testified that she brought to the meeting the message from Combat Command, along with a list of employees eligible for buyouts, but denied that she had any agenda. One of the two boiler plant employees called by the General Counsel testified that the Chief's subordinate did "most of the talking" at the meeting and that she did not speak from notes or documents. Transcript at 68. The other employee, however, believed that both the Chief and her subordinate "had some notes or something." Id. at 76. We conclude that the Judge's determination that the message from Combat Command served as the meeting's agenda is supported by the evidence.
The Respondent also excepts to the Judge's findings regarding the length of the meeting, and whether notes or minutes of the meeting were taken. As for the former, estimates of the length of the meeting ranged from 15 minutes (id. at 98) to 45 minutes (id. at 77). Thus, the Judge's finding regarding the length of the meeting is directly supported by testimony. As for notes or minutes, it appears that none were taken at the meeting itself. However, as the Judge found, the Chief and her subordinate later reconstructed the meeting on paper. The written description of the meeting by the Chief and her subordinate fairly approximates what would be found in a set of minutes.
The final disputed finding is that attendance at the meeting was mandatory. As to this finding, the record reflects that, upon being asked whether their attendance was required, the first boiler plant employee testified that "I don't believe it was mentioned that it [attendance] was a requirement, just that Civilian Personnel wanted to meet with the boiler plant operators." Id. at 69. The second employee said that "I don't know as it was required, but we were informed that there would be a meeting." Id. at 74. The Chief of Employee and Labor Relations testified that attendance was not mandatory. Id. at 96.
Consistent with the foregoing, the only finding to which the Respondent excepts and which appears to be unsupported by the record is the Judge's finding that attendance at the meeting was mandatory. Even concluding that attendance was not mandatory, however, on balance, and considering the "totality of the facts and circumstances," including the Judge's findings that are undisputed, we are persuaded that the evidence supports the Judge's decision that the May 25 boiler plant meeting was a formal discussion of which the Union should have been notified in advance.
E. The Judge's Recommended Remedy is Proper
It is well settled that the Authority has a "broad range of remedial powers." Department of the Army, U.S. Army Commissary, Fort Benjamin Harrison, Indianapolis, Indiana v. FLRA, 56 F.3d 273, 277 (D.C. Cir. 1995) (reversing Department of the Army, U.S. Army Soldier Support Center, Fort Benjamin Harrison, Office of the Director of Finance and Accounting, Indianapolis, Indiana, 48 FLRA 6 (1993)). Section 7105(g)(3) of the Statute provides that, in addition to issuing traditional cease-and-desist orders, the Authority "may require an agency or a labor organization . . . to take any remedial action [the Authority] considers appropriate to carry out the policies of this chapter." Section 7118(a)(7)(D) similarly provides that the Authority may order an unfair labor practice respondent to take "such other action as will carry out the purpose of this chapter." The U.S. Court of Appeals for the District of Columbia Circuit has "more than once said that [sections 7105(g)(3) and 7118(a)(7)(D)] 'exude indications of a broad congressional delegation of discretion to the FLRA to fashion appropriate remedies for an unfair labor practice.'" Id. at 277 (citations omitted).
At the same time, this "broad range of remedial powers" is not without limits. For example, the Authority may not issue a remedy requiring the expenditure of Government money absent an express waiver of sovereign immunity. Id. In addition, remedies for unfair labor practices may not be punitive. United States Department of Justice, Bureau of Prisons, Safford, Arizona, 35 FLRA 431, 445 (1990) (Safford). The Authority also may not direct a respondent to perform an illegal act. E.g., Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 49 FLRA 1522, 1532 (1994) (Authority will not order status quo ante where prior practice was unlawful).
Within these limits, however, the Authority has defined the broad objectives that an unfair labor practice remedy should serve: "We believe that remedies for unfair labor practices under the Statute should, like those under the NLRA, be 'designed to recreate the conditions and relationships that would have been had there been no unfair labor practice.'" Safford, 35 FLRA at 444-45 (quoting Local 60, United Brotherhood of Carpenters & Joiners v. NLRB, 365 U.S. 651, 657 (1961) (Harlan, J., concurring)). Any such remedies must, of course, "effectuate the policies of the Statute." Id. at 445. In addition, although the deterrence of future violative conduct is not in itself the principal objective of a remedial order, it "is also certainly a desirable effect of a remedy." Id.
The Authority has developed several "traditional" remedies, including a cease-and-desist order accompanied by the posting of a notice to employees, which are provided in virtually all cases where a violation is found. Other remedies requiring some form of affirmative action by the respondent have also become established, including, as examples, a retroactive bargaining order,(9) the grant of back pay,(10) and the release of improperly withheld information.(11) In some cases, these remedies have given rise to criteria of their own. E.g., Federal Correctional Institution, 8 FLRA 604 (1982) (setting criteria for status quo ante remedies where respondent failed to bargain over impact and implementation of a change); Federal Deposit Insurance Corporation, 41 FLRA 272, 279 (1991) (setting standard for status quo ante remedy where respondent failed to bargain over substance of a change).
We conclude that nontraditional remedies, such as the memorandum proposed by the General Counsel in this case, must satisfy the same broad objectives that the Authority described in Safford. That is, assuming that there exist no legal or public policy objections to a proposed, nontraditional remedy, the questions are whether the remedy is reasonably necessary and would be effective to "recreate the conditions and relationships" with which the unfair labor practice interfered, as well as to effectuate the policies of the Statute, including the deterrence of future violative conduct. Safford, 35 FLRA at 444-45. These questions are essentially factual. As such, they should be argued and resolved in essentially the same fashion as other factual questions brought before us. As with other factual questions, the General Counsel bears the burden of persuasion, and the Judge is responsible for initially determining whether the remedy is warranted.
In this case, the General Counsel's sole argument as to why the Judge's recommended remedy is inadequate is that the Respondent's Chief of Employee and Labor Relations conducted the formal discussion with the boiler plant employees after having received the charge filed by the Union regarding the Rivet Mile meeting. According to the General Counsel, the proposed memorandum from the Respondent's commander is necessary to prevent future violations of the Statute.
Although the charge regarding the Rivet Mile meeting was filed 1 month before the May 25 meeting, the Chief of Employee and Labor Relations was not notified until some 8 months later, when the consolidated complaint was issued, that those allegations were to be litigated. The Respondent has at all times denied the Local's allegations, and the General Counsel has presented no evidence, or even asserted, that the Respondent has conducted any other formal discussions in violation of the Statute besides the two discussions at issue here. Although the education of supervisors and managers about their responsibilities under the Statute is always a salutary objective, the General Counsel's argument that such education is necessary in this case is unsupported by the evidence.(12) Given the facts of this case, the traditional remedy recommended by the Judge should also accomplish the objective of future deterrence, an objective that, as discussed above, is "a desirable effect of a remedy." As such, we conclude that the Judge's recommended remedy is appropriate to effectuate the purposes and policies of the Statute.
Pursuant to section 2423.29 of the Authority's Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, F.E. Warren Air Force Base, Cheyenne, Wyoming 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, Local 2354, 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 Statute:
(a) Notify the Union and afford it the opportunity to be represented at formal discussions.
(b) Post at its facilities at Cheyenne, Wyoming, 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, and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and 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.
(c) Pursuant to section 2423.30 of the Authority's Regulations, notify the Regional Director of the Denver Region, 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
POSTED BY ORDER OF THE
FEDERAL LABOR RELATIONS AUTHORITY
The Federal Labor Relations Authority has found that F.E. Warren Air Force Base, Cheyenne, Wyoming, violated the Federal Service Labor-Management Relations Statute and has ordered us to post and abide by this Notice:
We hereby notify bargaining unit employees that:
WE WILL NOT conduct formal discussions with employees in the bargaining unit exclusively represented by American Federation of Government Employees, Local 2354, 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 bargaining unit employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.
WE WILL notify the American Federation of Government Employees, Local 2354, and afford it the opportunity to be represented at formal discussions.
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 Director of the Denver Regional Office of the Federal Labor Relations Authority, whose address is 1244 Speer Boulevard, Suite 100, Denver, CO 80204-3581, and whose telephone number is (303) 844-5224.
UNITED STATES OF AMERICA
FEDERAL LABOR RELATIONS AUTHORITY
OFFICE OF ADMINISTRATIVE LAW JUDGES
WASHINGTON, D.C. 20424-0001
| F.E. WARREN AIR FORCE BASE
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2354
Hazel Hanley, Esq.
For the General Counsel
Capt. Jeffery A. Rockwell, Esq.
For the Respondent
Mr. Ronald R. Phelps
For the Charging Party
Before: ELI NASH, JR.
Administrative Law Judge
Statement of the 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).
Pursuant to an unfair labor practice charge filed and amended by the captioned Charging Party (herein the Union) against the captioned Respondent, the General Counsel of the Federal Labor Relations Authority, by the Regional Director for the Denver Regional Office, issued a Complaint and Notice of Hearing alleging that the Respondent violated section 7116(a)(1) and (8) of the Statute in that it failed to comply with section 7114(a)(2)(A) by conducting formal discussions without giving the Union an opportunity to be represented.(1)
A hearing in this matter was conducted before the undersigned in Cheyenne, Wyoming. All parties were represented and afforded a full opportunity to be heard, to examine and cross examine witnesses, to introduce evidence and to argue orally. Briefs were filed by Respondent and the General Counsel and have been carefully considered.
Based upon the entire record in this matter, my observation of the witnesses and their demeanor, and my evaluation of the evidence, I make the following:
Findings of Fact
1. The Union represents between 350 to 400 unit employees at Respondent's facility in Cheyenne, Wyoming, including about 63 unit employees at the Rivet Mile 2010 Section (herein called Rivet Mile). The Rivet Mile activity originates from and is funded by Hill Air Force Base, Utah. The mission of Rivet Mile is the servicing of intercontinental ballistic missiles.
2. In March 1993(2), Michael Simmons was the General Manager and second-line supervisor at Rivet Mile. Simmons' office was located in Building 811, and outside his office was a larger office area. At all times relevant herein, Simmons supervised seven supervisors who, in turn, directly supervised the 63 unit employees in the various sections at Rivet Mile. Ron Duck was employed at Rivet Mile in March as a Power Systems Mechanic, in the Depot Support Activity (herein called DSA). He was supervised by Jim Krauer. Duck also worked in March as a janitor at the Rivet Mile Section. While Duck had janitorial duties, Simmons ordered him to post notices in Building 811 concerning a mock RIF meeting for Rivet Mile employees. Steve Gonsior was also employed by Rivet Mile as a Power Support Systems Mechanic. He worked in Building 1502 and was supervised by Rodney Ventureno. Duck and Gonsior were both union members, but neither held any office in the Union.
3. The Union also represented approximately nine Boiler Plant Operators at the Thermodynamics Center at Respondent's facility. Jim Hollingsworth was the immediate supervisor of these nine operators. Engineering manager Ron Kailey supervised Hollingsworth, and Stu Ziemen, in turn, supervised Kailey. The Boiler Plant contained a break room, located some fifteen to twenty feet from the employees' regular work area, where employees eat lunch. In May, Larry Cisler and Chris Poulton were unit employees who worked as boiler plant operators for Hollingsworth, Kailey, and Ziemen. Cisler and Poulton were both Union members, but neither held any union office.
4. At all material times, Kimberly Zakar, was the Chief of Employee and Labor Relations at the Civilian Personnel Office (hereinafter called CPO). At the time of the hearing, Ron Phelps, was president of the Union and had served in that position for approximately ten years. Normally, Zakar gives Phelps notice of formal meetings by telephone. Occasionally, Phelps dealt with another person in CPO, Terrie Prellwitz, Zakar's "subordinate". In late March or early April, Phelps learned from Gonsior and Duck about numerous meetings concerning a reduction in force (hereinafter called RIF) at Rivet Mile; however, no one in CPO gave Phelps timely prior notice or the opportunity to be represented at any of those March meetings.
5. In late winter of 1992 or the spring of 1993, Rivet Mile employees were "very restless and irritated about rumors and discussion" concerning a RIF of their section. Employees apparently wanted the Union to negotiate RIF procedures on their behalf. Duck and Gonsior, although union members, had not regularly attended Phelps' Union meetings until the RIF rumors and discussions at Rivet Mile began sometime in March. Needless to say, Phelps understood the concern of employees like Duck and Gonsior because a RIF is a bread-and-butter issue affecting the livelihood of employees, in that employees could be displaced through the bumping and retreat rights of other employees.
6. Sometime around February 10, Phelps learned that a RIF was possible at Rivet Mile later that year; therefore, on February 11, Phelps sent a written demand to bargain to Zakar. Thereafter, Zakar informed Phelps that his bargaining demand was premature.(3)
7. James Schaefer, Chief of Affirmative Employment, also part of CPO ran a mock RIF of employees at Rivet Mile between February 22 and March 3, in order to determine the relative positioning of the 63 Rivet Mile employees for the upcoming RIF. A mock RIF allows an agency to identify potentially affected employees in advance by simulating the actual RIF in accordance with applicable regulations. A mock RIF does not require the employees' presence nor does it require CPO to question any employee.
8. General Counsel's witnesses Gonsior and Duck testified that they attended a mock RIF meeting in March. Neither Duck nor Gonsior kept track of exact dates of meetings; in fact, Duck, when asked if the meeting could have occurred in April stated, "I am not sure, sir. We had so many, it is hard to keep them separate." Duck also testified that he did not know the exact date of the mock RIF meeting, but stated "I do know we had a mock RIF meeting." Expressed uncertainty such as this obviously detracts from his testimony. In any case, it is not disputed that sometime around the time of the mock RIF meeting, Simmons ordered Duck, who was then working as a janitor, to put up signs on the doors and bulletin boards in Building 811 for a meeting that was to be held in the large office area outside of Simmons' office. Gonsior, who honestly did not remember the exact date of the meeting, recalled that for that meeting, his then first-line supervisor in Building 1502, Rodney Ventureno, told employees while they were out in the field that they had to return to Building 811 for a meeting. Gonsior and Duck estimated that between 50 to 70 people attended that meeting. Duck and Gonsior remembered that people sat or stood wherever they could find a place.
9. The combined credited testimony of Duck and Gonsior reveals that Simmons opened the meeting by briefly stating that it was on the subject of a mock RIF, and Simmons then introduced several persons from CPO: Zakar, Prellwitz, and Schaefer. In addition to the Rivet Mile General Manager, Simmons, and CPO representatives, Duck recalled that various first-line supervisors, Rodney Ventureno, Jim Krauer, Bill McMillan, and Wayne Bratcher were also present. In addition, Gonsior also recalled that he saw other Rivet Mile first-line supervisors Ron Bullett and Bill Stryon present. Both Gonsior and Duck also said that Jim Schaefer conducted most of the meeting, and explained the mock RIF. Duck testified that Zakar and Prellwitz had documents of some kind with them, and he saw them take notes at the meeting. Gonsior and Duck remembered that when the meeting was opened to questions, several employees did ask questions, and Duck, in particular, remembered that Vic Secone and Bob Willson had questions. Duck also said that when employees' questions required further research, he saw the CPO representatives note down the question and the name of the employee, and Duck heard the CPO representatives tell employees that they would "check it out and try to get back to them." Both Gonsior and Duck estimated that the entire mock RIF meeting lasted from 45 minutes to one hour. Neither Phelps nor any other Union representative was present at the March mock RIF meeting. In contrast to the April RIF meeting when the Union was notified, Duck said that at the March mock RIF meeting no representative from CPO told employees that the Union had been notified but, had declined to attend. Duck was the only witness, for either side, who mentions more than one mock RIF meeting. Furthermore, Gonsior was uncertain when the meeting occurred. In these circum-stances, it is my view that the preponderance of the evidence does not show that Respondent held a mock RIF meeting for Rivet Mile employees in March. Accordingly, it is found that only one mock RIF meeting with Rivet Mile employees occurred and that the meeting was held on April 8.
10. Around March 3, Krauer, supervisor of the DSA crew, told unit employees, including Duck, to meet with Simmons. Once there Simmons allegedly conducted a group meeting with Duck and his co-workers on the DSA crew in his personal office, adjacent to the large general office area. According to Duck, Simmons met with the DSA employees, Hurshel Wade, Roy Stewart, Leonard Douglas, and Ray Buresik. Simmons told the employees he was meeting with them concerning the RIF, and he was interested in learning about their military status and their years of service. When Simmons asked Duck for his military and federal service information, Duck saw Simmons write down that Duck was a veteran with more than ten years in grade, in a little note pad. Duck also recalled that Simmons went through the same procedure in asking information from the other DSA crew members, including Wade and Stewart. Duck remembered that the meeting Simmons conducted in his personal office with DSA crew employees lasted about 35 to 40 minutes. No Union representative as present, and Simmons never told the DSA employees that the Union had been notified of this meeting but, had declined to attend.
11. Gonsior testified that a couple of weeks after the mock RIF meeting he was called into another RIF-related meeting. Gonsior's supervisor, in about late March or early April, informed him that Simmons wanted to see him at about 6:15 or 6:30 a.m. in Simmons' office, before he went out to the field. Gonsior said that about 12 to 13 employees attended this meeting, and there were not enough chairs in Simmons' personal office for everyone to sit down. Simmons told Gonsior and the other employees that in view of the mock RIF results, they were likely to be affected by the RIF, and they should watch their spending and avoid financial binds. Simmons explained that he was trying to get a response from Hill Air Force Base about his inquiries into incentive buyouts.(4) Gonsior estimated that the meeting Simmons conducted with 12 to 13 employees, who were likely to be affected by the RIF, lasted 15 to 20 minutes, perhaps one half hour. There was no Union representative at the small group meeting in Simmons' office. Furthermore, Gonsior testified that Simmons conducted another meeting with him, individually, on a different occasion, and during that meeting Simmons asked Gonsior about his years of federal service and his veterans status. Simmons admitted conducting individual meetings with unit employees in his office on March 29 and 30. Phelps received no notice of the March group meetings concerning the Rivet Mile RIF until he heard from Gonsior and Duck at Union meetings that Simmons was meeting with employees concerning the mock RIF.
12. In addition to the mock RIF meeting conducted by Schaefer, where no mention was made by CPO about the Union's absence, Duck testified that a later RIF meeting took place around April 8, when Zakar and Prellwitz made a second presentation about the Rivet Mile RIF. Duck says, that employees asked Zakar why the Union was not present. Duck remembers that Zakar gestured by throwing back her head and throwing up her hands and telling all 63 unit employees that the Union had declined to attend. Phelps conceded that the Union had been notified of the April 8 meeting; however, Phelps could not attend himself, nor could he find alternate representatives. Phelps denied that the April 8 meeting was the subject of his allegations in this case; moreover, Phelps stressed that it was the other meetings that Simmons had conducted with groups of Rivet Mile employees that led him to file the charge in Case No. DE-CA-30519, docketed on April 24, 1992.
13. On May 12, shortly after Phelps filed the charge in Case No. DE-CA-30519, Zakar received a message from Headquarters Air Combat Command, Langley Air Force Base, Virginia, concerning the closure of Wurtsmith Air Force Base and identifying certain occupations and grades matching displaced Wurtsmith employees. Zakar's job was to check the list and find matching employees at F.E. Warren to find out if they were interested in separation incentives. Among the listed occupations were boiler plant operators. About two weeks after she was sent the May 12 message from Langley, Zakar, on the afternoon of May 25, informed Hollingsworth, the boiler plant operators' supervisors, that she intended to meet with employees the following morning. Accordingly, Hollingsworth informed Larry Cisler, Chris Poulton, and the other employees about a morning meeting with CPO in the lunchroom the next day. Zakar admitted that she did not inform Phelps about the meeting even though she knew that the purpose of the meeting was to provide employees with information on financial incentives for a buyout, affecting working conditions.
14. On the morning of May 26, Phelps was working on a job in the engineering headquarters building, and as Phelps was walking down the hallway, Ron Kailey saw him going past his office door and stopped him. Kailey asked Phelps what he knew about the meeting being held in the boiler plant. Phelps told Kailey he knew nothing about it and asked Kailey what he knew. Kailey only knew that Zakar was going to be there.(5)
15. At about 9:00 or 10:00 a.m., Cisler and Poulton left their work site and went to the lunch room or break area. Present were at least three of their co-workers: Cisler recalled that Roger Williams, Bob Adolph, and Ron Dooley, the other boiler operators, were on leave and therefore, not present. In addition to the boiler plant operators, Jim Hollingsworth, Ron Kailey and Stu Ziemen, were there for the presentation by CPO. Hollingsworth introduced the meeting and the two CPO representatives, Zakar and Prellwitz. Zakar had a copy of the message from Wurtsmith Air Force Base with an attached list of occupations and grades affected by displaced Wurtsmith employees. According to both Poulton and Cisler, the presentation from the representatives from CPO concerned financial incentives to a maximum of $25,000 to make room for a more senior employee from Wurtsmith. Poulton testified that Zakar and Prellwitz stated that they were not making a firm offer to any employee, but were notifying everyone that the offer was contingent on an employee from Wurtsmith agreeing to relocate to F.E. Warren. Poulton stated that the deadline for taking a financial incentive was May 31, just three or four days from the meeting. Poulton said that Gene Kissell, his co-worker, asked a question, but he could not remember its content. Poulton also said that one of the management officials, either Kailey or Ziemen, made a comment or asked a question; however, Cisler recalled that it was Kailey who made a joke about his own possible early retirement. Zakar acknowledged that Prellwitz "interjected a thought or two here and there." Few of the employees attending the meeting showed much interest in the buyout because no one had enough civil service time or sufficient age. However, at least two employees told Zakar that they were interested. The entire meeting with the boiler plant operators lasted 15 to 45 minutes. No representative from the Union attended.
16. On May 27, upon learning of the meeting with boiler plant employees, Phelps notified Zakar he planned to file a charge, which became Case No. DE-CA-30791. Zakar did not deny meeting with the employees. Zakar told Phelps she did not notify him because she had such short notice; furthermore, the meeting was "informational." While Zakar and Prellwitz may not have taken notes during their May 26 meeting with unit employees in the boiler plant, Zakar ordered Prellwitz to prepare minutes two weeks after that meeting to address concerns of a commander inquiring on behalf of a secretary who had been telephoned about a possible buyout due to the Wurtsmith closure. The portion of the document summarizing the May 26 meeting with the boiler plant operators indicates some employees were not at the meeting and certain employees, Adolph and Kissell, were interested in the separation incentives. In addition, Zakar drew up a handwritten list of list of boiler plant operators' names which she checked when she established that they had received information concerning the separation incentives.
a. The alleged March mock RIF Meeting at Rivet Mile.
These consolidated cases involve a series of meetings surrounding employee reductions in force and as such are subject to the criteria the Authority uses to gauge formality. Its eight indicia of formality are as follows:
(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).
All eight factors are to be taken in totality.(6)
When a RIF is looming, the importance of the Union's rights under Section 7114(a)(2)(A) to attend meetings explaining a mock RIF is all the more significant, because by its presence, the Union might have met the concerns of "restless" and "irritated" employees who could perceive that the Union's absence from those meetings meant that it was not representing their interests.
It is contended here that the Union was not given prior notification or the opportunity to be represented at the March mock RIF discussion among various levels of management and supervisors, including three representatives from CPO, all levels of Rivet Mile supervision, as well as all 63 unit employees of the Rivet Mile Section. The stated purpose of the meeting was to inform Rivet Mile employees of the mock RIF run from February 26 to March 3. The mock RIF discussion allegedly concerned general working conditions, including employees' possible separations from employment at Rivet Mile, possible buyout incentives from them offered through Hill Air Force Base, and their rights as employees to displace others with lower RIF computation dates.
Respondent steadfastly denies that any March mock RIF meeting with all of the Rivet Mile employees ever occurred. The weight of the evidence suggests that Respondent is correct. The two principal witnesses relied on by the General Counsel, out of approximately 63 employees who supposedly attended the March mock RIF meeting were employees Gonsior and Duck. Neither was a Union advocate, but both attended Union meetings to ventilate their frustration at Phelps' non-participation in all the meetings being conducted at Rivet Mile. Further, some of the meetings about which they were complaining did occur in March.
Gonsior, after he was asked to focus on the "mock RIF meeting", described a meeting which was identical to an April 8 mock RIF meeting in most respects including time, place and participants. Obvious inconsistencies between the accounts of Gonsior and fellow employee Duck, raise serious questions concerning their independent recollection of when the mock RIF meeting actually did occur. The most striking inconsistency is Duck's recollection that two mock RIF meetings occurred while Gonsior makes no mention of a second mock RIF meeting being held. In this regard, the record reveals no reason for any necessity to hold more than one mock RIF meeting at Rivet Mile. Additionally, Respondent insists that only one mock RIF meeting involving CPO personnel occurred and that this meeting was held on April 8 because of employee concerns, and furthermore the Union was invited to attend. Since there were several meetings held during this period, both group and individual; the RIF had become a certainty; and, employees were experiencing emotional times, it comes as no surprise that employee participants in the meetings might be uncertain as to dates. Given the further fact that one such meeting was held in early April, it is my view that Gonsior and Duck simply confused the date on which the meeting was held and that they were each testifying concerning the one mock RIF meeting, held on April 8. In rejecting the General Counsel's stance that Respondent was motivated by some personal considerations to deny that a March mock RIF meeting with Rivet Mile employees took place, I find little reason to discredit Respondent's witnesses who testified that a mock RIF meeting was not held at Rivet Mile in March. Moreover, the Union was invited by Respondent to attend that April 8 meeting. In all the circumstances, I am not persuaded by a preponderance of the evidence that a March mock RIF meeting as described by Duck or Gonsior did take place.
Therefore, it is found, as Respondent suggests that the General Counsel did not meet its burden of proof in establishing that a March mock RIF meeting of Rivet Mile employees ever occurred. Consequently, it must be found that Respondent did not violate section 7116(a)(1) and (8) by holding a mock RIF meeting for Rivet Mile employees without the Union's presence in March 1993.
b. The March meetings Simmons conducted with Duck and other DSA employees and, with Gonsior and a group of twelve or thirteen employees.
The record disclosed that Simmons conducted both group and individual meetings at Rivet Mile with the DSA crew members, including Duck and, with Gonsior and a group of employees, sometime in March or April. The General Counsel maintains that some, but not all, of these meetings were formal discussions within the meaning of section 7114(a)(2)(A) of the Statute.
The evidence reveals that only one group meeting was held by Simmons where he discussed financial incentives with the group, which might require the presence of the exclusive representative. The remaining meetings, in my view, seem to be only information gathering meetings where Simmons met one-on-one or with a particular section, such as DSA, to obtain service information.
It is clear from the record that sometime in March, Simmons conducted a meeting with Gonsior and 12 or 13 other employees targeted as likely separatees, which constituted a formal discussion under the Statute. The evidence shows that around 6:15 a.m. or 6:30 a.m. one late March morning, Gonsior was notified by his first-line supervisor, Ventureno, that he was not to go out to the field, but was to report to Simmons' office. Once he arrived at Simmons' office, Gonsior took a chair and sat with 12 to 13 other employees. Simmons began the meeting by stating that his purpose in calling the employees together was to inform them that as a result of the mock RIF, they were likely to be affected by the actual RIF. Simmons then went on to discuss how employees should watch their purchases and budgets to avoid financial binds. In addition, Simmons explained that he was trying to get Hill Air Force Base, the Activity funding Rivet Mile, to give him information about buyouts. The entire meeting lasted twenty minutes to one-half hour. The Union was not notified of this March meeting with the targeted unit employees as likely separatees in a RIF and was not present. Therefore, no Union representative was present.
Duck testified that his first-line supervisor, Krauer, notified his crew one afternoon in March that they would be meeting the following morning in the office of their second-line supervisor, Simmons. The meeting was mandatory and conducted in an area other than the employees' normal work site. According to Duck, Simmons announced the meeting was about the RIF. Simmons also asked each employee to tell him the number of years spent in military and civil service, and Simmons noted down each employee's answer.
While crediting Duck, that the DSA crew members were called to a meeting with Simmons, it is my view that the meeting about which he testified did not rise to the level of a formal discussion. Based on the record evidence, the undersigned can only conclude that if Duck did attend a group meeting with Simmons, that meeting was merely to obtain the service dates from employees who could have potentially been affected by the RIF and Simmons did not discuss conditions of employment. Although it is not clear exactly why Simmons would need such information, Gonsior, it is also noted, said that Simmons sought the same information from him in a one-on-one meeting.
Simmons denied conducting any meetings following the mock RIF results other than one-on-one meetings with targeted employees whose names were set out on a handwritten list prepared by Schaefer. Yet, in his direct examination, Simmons recalled that there was a meeting involving "[a]ll of Rivet Mile concerning financial incentives. Gonsior, on the other hand, described not only the earlier small group meeting with 12 or 13 other employees potentially affected by a RIF, but also a second one-on-one meeting which he had with Simmons where he was asked privately about his years of federal service. The second meeting, as depicted by Gonsior, corresponds to the series of one-on-one meetings Simmons conducted with each targeted employee in his office around March 29 and 30, was personal to Gonsior's situation and was not alleged to be a formal discussion.(7)
Gonsior's testimony is sufficient, however, to demonstrate that a formal discussion concerning general working conditions, where the Union was not notified or given the opportunity to be represented occurred. Furthermore, Gonsior's recollection of two meetings with Simmons is partially corroborated by Duck's recollection of Simmons' meeting with another small group of the DSA crew. Duck however, made no mention of financial incentives, but recalled only the requests by Simmons for service information. Although Duck testifies that others were present during this small group meeting, it appears that the meeting about which he testified was akin to the one-on-one meetings conducted by Simmons where he sought individual employee's service dates. Therefore, it is more likely than not that Simmons, in addition to conducting one-on-one meetings personal to each targeted employee, also conducted at least one small group meeting sometime in March where he discussed financial incentives which constituted a formal discussion within the meaning of the Statute. Thus, it is found that Simmons did conduct a formal discussion with Gonsior and other employees in March, where the Union was not allowed an opportunity to be present, although he intended to and did discuss general working conditions.
Finally, it is found that if Duck attended a group meeting in March, it was a meeting not intended to discuss conditions of employment, but to obtain employee service dates. In my view, seeking such information from employees is not violative of the Statute. Thus, it is found that the meeting held with Duck and the DSA group was limited to information seeking and was not, therefore, violative of the Statute.(8)
Accordingly, it is found that Respondent's failure to give the Union notice or the opportunity to be represented at a meeting involving 12 or 13 Rivet Mile employees that encompassed the elements of a formal discussion and concerned conditions of employment constituted a violation of section 7116(a)(1) and (8) of the Statute.
The meeting held on or about May 25, 1993 with boiler plant operator and engineering management officials.
The essential facts surrounding the meeting held on or about May 25 are undisputed. Respondent maintains that this meeting was merely to disseminate information to the employees and not to discuss a condition of employment and therefore, lacked the requisite formality to satisfy Statutory requirements. I disagree with Respondent and find again that a briefing of employees eligible for the buyout incentive does constitute a discussion of a condition of employment.
Boiler plant operators were notified by supervisor Hollingsworth of the meeting conducted by CPO. Between 9:00 a.m. and 10:00 a.m., Cisler and Poulton, along with all other boiler plant operators not on leave, met with Hollingsworth, their first-line supervisor, and their upper level managers Kailey and Ziemen reported to the break room. Zakar and Prellwitz informed them that the subject of the meeting was the possibility of financial incentives up to $25,000 for early separation to accommodate employees from Wurtsmith Air Force Base. Also, Zakar told employees that the offer was contingent upon whether an employee from Wurtsmith was interested in a permanent change of station to come to F.E. Warren. Zakar further warned employees that if they were interested in early separation, they must make that interest known by May 31 as she had to inform Wurtsmith by June 1. Finally, Zakar spoke using a copy of the message and the attached list she had received from Headquarters, Langley Air Force Base. The message and the list served as the agenda.(9)
At least one employee, Kissell, asked a question, and one management official, Kailey, joked about the possibility of his own early retirement. Even Prellwitz, Zakar's subordinate, interjected a thought or two. Although some dialogue occurred, such is not a requisite requirement of a formal discussion. Moreover, which employees attended and what, if any, interest they expressed about the possible separation incentive was somehow noted, because nearly two weeks after the meeting, at the request of a commander, Prellwitz was able to reconstruct the events of the meeting with boiler plant operators on May 26. The meeting lasted at least 15 minutes, and perhaps as long as 45 minutes. No Union representative attended.
Zakar admittedly did not inform the Union about this meeting. Furthermore, Zakar's testimony alone discloses not only the Statutory elements for a formal discussion, but all eight of the indicia of formality established by the Authority. There was a discussion, which was formal, between five representatives of management and several unit employees, concerning the Respondents' early separation procedures and the question of continued employment.(10) The eight formality factors are met as follows: (1) Zakar and Prellwitz from CPO conducted a meeting with the employees' first-level supervisor, Hollingsworth; (2) Kailey and Zieman, second-level and third-level supervisors in the employees' supervisory hierarchy, also attended; (3) the meeting took place in the break room, not the employees' work site; (4) the meeting lasted 15 to 45 minutes; (5) the meeting was called by the first-level supervisor Hollingsworth who notified his employees the afternoon prior to the presentation; (6) Zakar used the message and the attached list from Headquarters, Langley Air Force Base, in addressing her remarks, as the formal agenda of the meeting; (7) employees' were informed in advance, that their attendance was not discretionary, but mandatory; (8) the meeting was conducted in a manner that made it possible for Zakar to prepare a handwritten list of interested employees, and the meeting was conducted in a manner to make it possible for Prellwitz, even two weeks after the event, to construct an outline of what was presented and which employees expressed an interest in the separation incentives.(11)
Accordingly, it is found that the meeting held on or about May 25, 1993 constituted a formal discussion within the meaning of section 7114(a)(2)(A) of the Statute and was held without giving the Union an opportunity to be represented and therefore, constituted a violation of section 7116(a)(1) and (8) of the Statute.(12)
Pursuant to section 2423.29 of the Federal Labor Relations Authority's Rules and Regulations and section 7118 of the Statute, it is hereby ordered that the Department of the Air Force, F.E. Warren Air Force Base, Cheyenne, Wyoming, 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, Local 2354, AFL-CIO concerning grievances or any personnel policy or practices or other general conditions of employment, including discussions of financial incentives for employees to retire or resign from their positions, without affording the American Federation of Government Employees, Local 2354, AFL-CIO 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) Notify the American Federation of Government Employees, Local 2354, AFL-CIO and afford it the opportunity to be represented at formal discussions concerning grievances or any personnel policy or practices or other general conditions of employment, including discussions of financial incentives for employees to retire or resign from their positions.
(b) Post at its facilities in Cheyenne, Wyoming, 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, 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 insure that such Notices are not altered, defaced, or covered by any other material.
(c) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director of the Denver Region, 1244 Speer Boulevard, Suite 100, Denver, CO 80204-3581, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply herewith.
Issued, Washington, DC, March 30, 1995
ELI NASH, JR.
Administrative Law Judge
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 HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT conduct formal discussions our employees in the bargaining unit exclusively represented by the American Federation of Government Employees, Local 2354, AFL-CIO concerning grievances of any personnel policy or practices or other general conditions of employment, including discussions of financial incentives for employees to retire or resign from their positions, without affording the American Federation of Government Employees, Local 2354, AFL-CIO 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.
WE WILL notify the American Federation of Government Employees, Local 2354, AFL-CIO and afford it the opportunity to be represented at formal discussions concerning grievances or any personnel policy or practices or other general conditions of employment, including discussions of financial incentives for employees to retire or resign from their positions.
Dated:___________ By: _____________________________
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 of the Federal Labor Relations Authority, Denver Region, 1244 Speer Boulevard, Suite 100, Denver, CO 80204-3581, and whose telephone number is: (303) 844-5224.
(If blank, the decision does not have footnotes.)
Authority's Footnotes Follow:
1. The Respondent moved to strike certain statements from the General Counsel's exceptions. The General Counsel subsequently withdrew these statements and we have not considered them in deciding this case. Accordingly, we deny the Respondent's motion.
2. The Judge identified these factors as:
(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).
Judge's Decision at 9.
3. The Judge rejected the Respondent's argument that the complaint "failed to give sufficient notice of the three RIF related meetings for which the General Counsel presented evidence." Judge's Decision at 2 n.1. He found that the complaint "alleged that meetings took place during March 1993," that the Respondent "understood the issues in dispute and presented its evidence," and that it "had sufficient notice to prepare its defense in this matter." Id.
4. Section 10(e) of E.O. 11491, as amended, provided in part that a "labor organization shall be given the opportunity to be represented at formal discussions between management and employees or employee representatives concerning grievances, personnel policies and practices, or other matters affecting general working conditions of employees in the unit."
5. Section 7114(a)(3) of the Udall amendment provided that an exclusive representative shall be given an 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 practice or other general condition of employment[.]
Legislative History at 914 (124 Cong. Rec. 29, 178).
6. A similar rule obtained under E.O. 11491. See, e.g., Department of the Air Force, Sacramento Air Logistics Center, McClellan Air Force Base, California, 29 FLRA 594, 600-01 (1987).
7. These eight factors were first enumerated in this form in Department of Health and Human Services, Social Security Administration, Bureau of Field Operations, San Francisco, California, 10 FLRA 115, 118 (1982). Many of them, however, may be traced back to decisions of the Federal Labor Relations Council issued under E.O. 11491. See, e.g., Department of Defense, U.S. Navy, Norfolk Naval Shipyard, 1 FLRA 240, 246-47 (1979).
8. There is no evidence as to whether a formal agenda was established or whether attendance was mandatory, and no allegation that any management representatives other than the one who conducted the meeting attended it. However, testimony upon which the Judge relied, in combination with other undisputed evidence, reflects that the official who held the meeting was the General Manager, the official in charge (and second level supervisor) of the Rivet Mile project; the meeting occurred in the General Manager's main office; employees were informed of the meeting by their first level supervisor in advance of the meeting; and the meeting lasted between 15 and 30 minutes.
9. See, e.g., Department of Veterans Affairs Medical Center, Asheville, North Carolina, 51 FLRA 1572, 1581 (1996).
10. See, e.g., U.S. Department of Labor, Washington, D.C. and U.S. Department of Labor, Employment Standards Administration, Boston, Massachusetts, 37 FLRA 25, 41 (1990).
11. See, e.g., Internal Revenue Service, Austin District Office, Austin, Texas, 51 FLRA 1166, 1181 (1996).
12. In view of this determination, we do not address whether the actual memorandum proposed by the General Counsel in this case would be effective in providing supervisors and managers with information regarding their responsibilities concerning formal discussions. We note, however, that the portion of the memorandum setting forth requirements for supervisors who meet with employees does not contain any reference to formal discussions in general or formality factors in particular.
ALJ's Footnotes Follow:
1. Respondent maintains that the Consolidated Complaint failed to give sufficient notice of the three RIF related meetings for which the General Counsel presented evidence at the hearing. The Consolidated Complaint alleged that meetings took place during March 1993, which would include a mock RIF meeting and small group meetings occurring within the March time frame and are all within the pleadings of the Complaint. Clearly, Respondent understood the issues in dispute and presented its evidence concerning the formal discussions stemming from a mock RIF run from February 22 through March 3, 1993 and the small group meetings. It thus appears that all parties understood the subject of the instant dispute and each presented evidence relevant to all issues in the matter. A mere ambiguity in the language of the complaint would not remove the issue from being encompassed by the complaint. Health Care Financing Administration, 35 FLRA 491, 494 (1990). It is found therefore, that Respondent had sufficient notice to prepare its defense in this matter.
2. All dates are 1993 unless otherwise stated.
3. Around March 15, Zakar did notify Phelps that there was to be a RIF at Rivet Mile, effective on September 30, and the Union was to submit its proposals no later than March 24. On March 24, the Union did submit its RIF proposals.
4. Simmons testified: "I did have a meeting in March that discussed incentives from Hill . . . [because] Hill Air Force Base authorized incentives for people who wanted to separate from the Service." Simmons further explained that Rivet Mile was on Hill's unit manning document, and Hill paid Rivet Mile employees.
5. Phelps later learned about the subject of the meeting when one of the boiler plant employees telephoned him to ask what the Union knew about incentive buyouts being offered to F.E. Warren employees due to the closure of Wurtsmith Air Force Base.
6. Defense Logistics Agency, 48 FLRA 744, 753 (1993).
7. Social Security Administration, 20 FLRA 80, 83 (1985).
8. Internal Revenue Service, 19 FLRA 353 (1985), enforced sub nom. NTEU v. FLRA, 826 F.2d 14 (D.C. Cir. 1987); Defense Depot Tracy, 14 FLRA 475(1984).
9. Cf. Social Security Administration, 41 FLRA 1309, 1342 (1991).
10. Defense Distribution Region West, 47 FLRA 1131 (1993).
11. Defense Distribution Region West, supra.
12. In light of the above disposition of these matters, the General Counsel's proposed remedy is deemed unwarranted.