[ v19 p20 ]
19:0020(2)CA
The decision of the Authority follows:
19 FLRA No. 2
GENERAL SERVICES ADMINISTRATION
REGION 8, DENVER, COLORADO
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 3275
Charging Party
Case No. 7-CA-942
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision in the
above-entitled proceeding finding that the Respondent had engaged in
certain of the unfair labor practices alleged in the complaint, and
recommending that it be ordered to cease and desist therefrom and take
certain affirmative action. The Judge further found that the Respondent
had not engaged in certain other alleged unfair labor practices and
recommended dismissal of the complaint with respect to them. Exceptions
limited to the aspects of the unfair labor practice complaint dismissed
by the Judge were filed by the General Counsel.
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute (the Statute), the Authority has reviewed the rulings of the
Judge made at the hearings and finds that no prejudicial error was
committed. The rulings are hereby affirmed. Upon consideration of the
Judge's Decision and the entire record, the Authority hereby adopts the
Judge's findings, conclusions and recommended Order, as modified herein.
The Judge concluded that the first meeting conducted on January 7,
1981 by the Respondent's agent, Ronald Watkins, with two bargaining unit
employees was not a formal discussion within the meaning of section
7114(a)(2)(A) of the Statute. /1/ In finding the meeting not to be
formal in nature, he noted that the meeting was conducted by Watkins,
the first-level supervisor of the two bargaining unit employees; no
other management representatives were present; the meeting was of short
duration; and it was conducted in an informal manner with no advance
notice of formal agents. /2/ Accordingly, the Judge concluded that the
Respondent's failure to provide the exclusive representative with an
opportunity to be represented at this meeting was not violative of the
Statute.
However, the Judge concluded that the second meeting conducted by
Watkins the same day was a formal discussion within the meaning of the
Statute. In finding the meeting to be formal, he noted particularly,
among other things, that the meeting was conducted by Watkins, the
second-level supervisor of the mail room employees who were required to
attend along with their first-level supervisor, and that the meeting was
conducted away from the bargaining unit employees' desks. He further
found that Watkins' general discussion of office coverage problems, his
suggestions that certain employees change their schedules and the fact
that an employee volunteered to go off the four day week, "served as a
vehicle to bring into question a personnel policy or practice, namely
the compressed work schedule." The Judge concluded, therefore, that the
Respondent's failure to provide the Union with an opportunity to be
represented constituted a violation of section 7114(a)(2)(A) of the
Statute in violation of section 7116(a)(1), (5) and (8). He also
concluded, without supporting rationale, that the Respondent's conduct
constituted a bypass of the exclusive representative in violation of
section 7116(a)(1) and (5) of the Statute.
In a subsequently issued decision, Bureau of Government Financial
Operations, Headquarters, 15 FLRA No. 87 (1984), petition for review
filed sub nom. National Treasury Employees Union v. FLRA, No. 84-1493
(D.C. Cir. Oct. 1, 1984), the Authority reiterated that in order for a
union's right to be represented under section 7114(a)(2)(A) to attach,
"all elements set forth in that section must be found to exist: (1) a
discussion; (2) which is formal; (3) between one or more
representatives of the agency and one or more employees in the unit or
their representatives; (4) concerning any grievance or any personnel
policy or practices or other general conditions of employment."
In considering whether the foregoing elements existed with regard to
both January 7 meetings conducted by Watkins, the Authority concludes,
in agreement with the Judge and based on his rationale, that the first
meeting was not formal in nature and therefore was not a formal
discussion within the meaning of section 7114(a)(2)(A) of the Statute.
Accordingly, the Respondent was not in violation of section 7116(a)(1),
(5) and (8) of the Statute by failing to provide the Union with an
opportunity to be represented at the meeting.
With respect to the second meeting conducted that day, the Authority
concludes that all of the elements noted in Bureau of Government
Financial Operations /3/ have been established, and therefore, in
agreement with the Judge, that the meeting was a formal discussion
within the meaning of section 7114(a)(2)(A) of the Statute. Thus, the
Authority concludes in agreement with the Judge that the second meeting
was formal in nature, noting particularly that the meeting was conducted
by Watkins as the second-level supervisor of the bargaining unit
employees present; that the first-level supervisor of these employees
was also present; that the employees were required to attend; and that
the meeting was held away from their desks. As to the final element,
the Authority concludes in agreement with the Judge's analysis that the
purpose of this meeting and the subject matter discussed was not limited
to the discrete application of a personnel policy, but rather involved a
general discussion of that policy and how it was working and thus
involved both a discussion which concerned conditions of employment
affecting employees in the unit generally, namely the compressed work
schedule. Therefore, the Authority concludes that the Respondent's
failure to provide the Union with an opportunity to be represented at
the second January 7 meeting constituted a failure to comply with the
requirements of section 7114(a)(2)(A) of the Statute in violation of
section 7116(a)(1) and (8). /4/
Further, the Authority concludes that the Respondent did not bypass
the Union in violation of section 7116(a)(1) and (5) of the Statute at
either of the two meetings conducted on January 7, 1981. /5/ The
Authority has previously held that where management merely meets with
bargaining unit employees to disseminate or gather information and does
not solicit or entertain proposals from such bargaining unit employees
concerning their conditions of employment, i.e., negotiate or deal
directly with them, and does not otherwise attempt to undermine the
status of the union as the exclusive representative of the employees,
its conduct does not constitute an unlawful bypass of the exclusive
representative. /6/ In the present case, the Authority concludes that
the General Counsel has failed to establish that Watkins, at the two
January 7 meetings, in fact negotiated or dealt directly with bargaining
unit employees as to their conditions of employment or otherwise
attempted to take a certain course of action. In this regard, the
record fails to establish that Watkins sought to bargain with unit
employees concerning a modification of their work schedules merely by
pointing out existing office coverage problems which could be alleviated
if some employees decided to change their schedules. Nor does the fact
that one employee volunteered to do so require a contrary result.
Accordingly, these portions of the complaint alleging that the
Respondent bypassed the exclusive representative in violation of section
7116(a)(1) and (5) of the Statute shall be dismissed.
ORDER
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Statute, it is hereby ordered that the General
Services Administration, Region 8, Denver, Colorado, shall:
1. Cease and desist from:
(a) Holding or conducting formal discussions with bargaining unit
employees without first providing, by appropriate advance notice to the
exclusive representative, American Federation of Government Employees,
AFL-CIO, Local 3275, an opportunity to be represented at such 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
Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Give American Federation of Government Employees, AFL-CIO, Local
3275, prior notice of, and an opportunity to be represented at, formal
discussions conducted with bargaining unit employees.
(b) Post at its facilities in Denver, Colorado, 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
Regional Administrator, or a designee, 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, Region VII, Federal Labor
Relations Authority, in writing, within 30 days from the date of this
Order, as to what steps have been taken to comply herewith.
IT IS FURTHER ORDERED that the remaining allegations of the complaint
in Case No. 7-CA-942 be, and they hereby are, dismissed.
Issued, Washington, D.C., July 11, 1985
Henry B. Frazier III, Acting
Chairman
William J. McGinnis, Jr., Member
FEDERAL LABOR RELATIONS AUTHORITY
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS
AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
OF TITLE
5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT hold or conduct formal discussions with bargaining unit
employees without first providing, by appropriate advance notice to the
exclusive representative, American Federation of Government Employees,
AFL-CIO, Local 3275, an opportunity to be represented at such 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 Statute. WE WILL give American Federation of Government
Employees, AFL-CIO, Local 3275, prior notice of, and an opportunity to
be represented at, formal discussions conducted with bargaining unit
employees.
. . . (Agency or Activity)
Dated: . . . By: . . . (Signature) This Notice must remain posted for
60 consecutive days from the date of posting, and must not be altered,
defaced, or covered by any other material. If employees have any
questions concerning this Notice or compliance with any of its
provisions, they may communicate directly with the Regional Director,
Region VII, Federal Labor Relations Authority, whose address is: 1531
Stout Street, Suite 301, Denver, Colorado 80202 and whose telephone
number is: (303) 837-5224.
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No.: 7-CA-942
Gavin K. Lodge, Esquire
James J. Gonzales, Esquire
For the General Counsel
Aliova D. Juarez, Esquire
Patricia Y. Hughes, Esquire
For the Respondent
Before: WILLIAM B. DEVANEY
Administrative Law Judge
DECISION
Statement of the Case
This proceeding, under the Federal Service Labor-Management Relations
Statute, Chapter 71 of Title 5 of the United States Code, 5 U.S.C. 7101,
et seq., /7/ and the Final Rules and Regulations issued thereunder, 5
C.F.R. 2423.1, et seq., was initiated by a charge filed on January 14,
1981 (G.C. Exh. 1(a)), which alleged violations of Secs. 16(a)(1) and
(5) of the Statute, and an amended charge, dated October 9, 1981 (G.C.
Exh. 1(b)), which alleged violations of Secs. 16(a)(1), (5) and (8) of
the Statute. The Complaint and Notice of Hearing issued on October 15,
1981; alleged violations of Secs. 16(a)(1), (5) and (8) of the Statute;
and scheduled a hearing for December 16, 1981 (G.C. Exh. 1(c)). By
Order dated October 15, 1981 (G.C. Exh. 1(d)) this case was consolidated
for hearing with Case No. 7-CA-951. /8/ By Order dated November 12,
1981 (G.C. Exh. 1(e)) the hearing herein, and in other cases, was
rescheduled to February 8, 1982, for Calendar Call; and by Order dated
January 20, 1982, was further rescheduled to April 19, 1982, for
Calendar Call at which time the hearing herein was fixed for April 22,
1982, pursuant to which a hearing was duly held on April 22, 1982,
before the undersigned in Denver, Colorado.
All parties were represented at the hearing, were afforded full
opportunity to be heard, to examine and cross-examine witnesses, to
introduce evidence bearing on the issues involved, and were afforded
full opportunity to present oral argument. At the close of the hearing,
May 24, 1982, was fixed as the date for mailing post-hearing briefs,
which time was subsequently extended, upon timely motion of the General
Counsel, and for good cause shown, to June 24, 1982. Each party timely
filed a most helpful brief, received on June 24, 1982, which have been
carefully considered. Upon the basis of the entire record, including my
observation of the witnesses and their demeanor, I make the following
findings and conclusions:
The Issue
Where the parties had negotiated an agreement concerning the
alternate work schedule (flexible and compressed work week) program
which, inter alia,: a) provided that Respondent retained the right and
authority to change any approved flexible and compressed work schedule
to meet work requirements; but b) provided for an evaluation team,
consisting of equal membership between Respondent and the Union, to
"review individual disputes", specifically including whether schedules
are "being changed without due need", and to make recommendations which
will be considered by Respondent before any final decision, did
Respondent conduct formal discussions on either, or both, of two
occasions on January 7, 1981, within the meaning of Sec. 14(a)(2)(A) of
the Statute, in violation of Secs. 16(a)(1), and (8) of the Statute
and/or did Respondent, by holding meetings with unit employees, bypass
the Union in violation of Sec. 16(a)(1) and (5) of the Statute?
Findings
1. On May 25, 1979, Respondent issued GSA Regional Order 8 ADM
6010.11, which set up procedures to implement flexible and compressed
work schedules, also known as alternate work schedules (AWS) (G.C. Exh.
2) for the period of the experiment and on June 14, 1979, Respondent and
American Federation of Government Employees, AFL-CIO, Local 3275
(hereinafter referred to as the "Union"), the certified exclusive
representative, entered into a Memorandum of Agreement (G.C. Exh. 3)
which, inter alia, set aside certain provisions of an agreement between
Respondent and the Union for the duration of the experimental AWS
program and provided that, "In lieu thereof the GSA Order 8 ADM 6010.11
. . . will apply during the conduct of the experimental program with
alternative work schedules." The GSA Order had provided for "An
evaluation team, including management and union officials. . . . " (G.C.
Exh. 2, Par. 11); but the Memorandum of Agreement more particularly
provided: a) that the evaluation team would "consist of equal
membership between the parties"; and b) that the evaluation team would,
inter alia, "review individual disputes . . . and . . . make
recommendations . . . to the Regional Administrator." (G.C. Exh. 3).
The GSA Order, incorporated by the Memorandum of Agreement, specifically
reserved to management the right to change any approved alternate work
schedule, "The Regional Administrator, or his designee, retains the
right and authority to make such changes"; provided that supervisors
may recommend changes to any approved alternate work schedule, "in order
to meet work requirements"; provided, further, that employees who feel
their schedules are being changed "without due need" may contact "the
Personnel Officer or their Union representative on the evaluation team
to review their situation"; and, finally, that the "Regional
Administrator will consider the team's recommendation . . . before
making a final decision." (G.C. Exh. 2, par. 8c (3)).
2. Mr. Ronald Watkins, now a Realty Specialist, was, at all times
material, Chief of the Office Services Branch with about twelve
employees under his supervision (Tr. 27), some of whom remained on the 8
hour, five day work week; some of whom were on approved nine day work
schedules (i.e., they worked 5 days one week, 4 days the next week; 8
days at 9 hours per day and 1 day at 8 hours); and some of whom were on
a four day, ten hours per day, schedule. Mr. Dick Arnold, who was
responsible for the issuance of office supplies and forms; Ms. Barbara
McLaughlin, who handled impressed funds; and Ms. Karen Nicholson, who
handled Congressional matters, were among the employees on a four day
schedule. In late 1980, Mr. Watkins became concerned that, because of
the compressed time, the work of Arnold, McLaughlin and Nicholson was
not being covered well on the days that they were off. On, or about,
January 7, 1981, Mr. Watkins discussed the work coverage situation with
Mr. Peter Minardi, Assistant Regional Administrator for Administration
(Tr. 29). Upon leaving the meeting with Mr. Minardi, Mr. Watkins went
to Ms. McLaughlin and Ms. Nicholson and asked each to come to his office
(Tr. 29). Mr. Watkins' office, ". . . isn't really an office, it's kind
of an inset between two offices. It doesn't have a door. . . . " (Tr.
17).
3. With only Ms. McLaughlin and Ms. Nicholson present, Mr. Watkins
told them at their meeting on January 7, 1981, that their work was not
being covered when they were off (Tr. 16, 22, 30) and "requested" that
they change their schedule to either eight hours a day, five days a week
or nine hours a day, four days one week and five days the next", as Ms.
McLaughlin (Tr. 15) and Mr. Watkins recalled (Tr. 30); or "told" them
that, ". . . he would like us to go off the ten-hour work schedule . .
.." (Tr. 22) as Ms. Nicholson recalled. Ms. Nicholson objected because
of her car pool (Tr. 16-17, 22, 30). Ms. McLaughlin did not recall
whether Mr. Watkins responded to Ms. Nicholson's inquiry about her car
pool (Tr. 17); Mr. Watkins did not ". . . really recall" his answer, ".
. . other than maybe we can try to work it out" (Tr. 30); and Ms.
Nicholson said he made no response to the car pool problem, that "That
didn't make any difference" (Tr. 23) because he told them that the
following Monday, January 12, 1981, " . . . we would have to change our
schedule" (Tr. 23). Ms. McLaughlin's schedule was changed from the
"ten-hour day, four-day week" beginning January 12, presumably reverting
to the regular eight hour, five day per week schedule (Tr. 14, 15);
however, Ms. Nicholson, pursuant to Mr. Watkins' offer, requested, and
was granted, the "9-5-4, the nine-hour day" schedule. /9/ (Tr. 24)
beginning January 12, 1981 (Tr. 24). The alternate work schedule
program experiment expired in March, 1982 (Tr. 25), at which time Ms.
Nicholson reverted to an eight-hour schedule (Tr. 24). This meeting was
"very short" (Tr. 16, 23) lasting no more than ten to fifteen minutes
(Tr. 16, 23); it was not scheduled in advance; no written notification
of the meeting was given; and no notes were taken at the meeting (Tr.
16, 25). Ms. Nicholson testified that sometime after the meeting with
Mr. Watkins she had asked Ms. Dorothy Cordes, an officer of the Union,
"If the union was going to do anything about the schedule changes" (Tr.
25); that she did not request union representation at the meeting with
Mr. Watkins; and that she did not request reconsideration of the
suggested action that Mr. Watkins made because she ". . . didn't even
know that we could." (Tr. 26).
4. Later that same day, January 7, Mr. Watkins went to the rear of
the building and asked the supervisor, Ms. Ginger Brennan, if he could
get a few people together (Tr. 34). When the six or seven employees
assembled in the mail room, Mr. Watkins, ". . . expressed the need for
particularly the office supplies and forms area not having full coverage
on the days that Dick Arnold was off because he was on the ten-hour
program and . . . asked that or requested maybe Dick to consider
changing his hours from the ten to either the nine or eight-hour
program" (Tr. 35); that he told them, ". . . we were having some
difficulties in covering the window for issuance of forms and supplies"
(Tr. 36-37); that he, " . . . suggested that probably the solution was
to have Dick change to either the eight or nine-hour program" (Tr. 37);
Mr. Watkins stated that Mr. Arnold willingly changed his schedule,
beginning on the 12th, saying, ". . . that was better for him." (Tr.
37); Mr. Watkins further testified that Mr. Arnold further stated that,
"'I'd be glad to (change) because now I can get a ride with Dorothy
Cordes. I've had some trouble riding my bicycle to work and now I have
someone to bring me to work.' He did ask me if he could have the same
hours that she had and I said, 'Sure'". (Tr. 41).
5. In addition, Mr. Watkins testified that a Mr. Hal Foster, ". . .
who was also on the ten-hour program, even though his area wasn't a
major problem, he said that he would like to go back to the eight
hours." (Tr. 41).
6. None of the employees in the mail room requested union
representation; and none requested review of the request for change in
work schedule (Tr. 41). Ms. Brennan was present during this meeting
(Tr. 35). Mr. Watkins further testified that previously he had talked
to Ms. Brennan on a couple of occasions about the lack of adequate
coverage of the issuance of supplies and forms when Mr. Arnold was off
and that she had informed him that she had told the employees that the
coverage during Mr. Arnold's absence, " . . . just didn't work out."
(Tr. 38).
7. It is conceded that the Union was given no notice of either
meeting, i.e. Mr. Watkins' meeting with Ms. McLaughlin and Ms. Nicholson
and his meeting with employees in the mail room; and the Union was not
represented at either meeting.
Conclusions
The threshold issue is whether either, or both, of Mr. Watkins'
meetings of January 7, 1981, was a formal discussion within the meaning
of Sec. 14(a)(2)(A) of the Statute which provides that:
"(2) An exclusive representative . . . shall be given the
opportunity to be represented at--
"(A) any formal discussion between one or more representative
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. . . . " (5
U.S.C. 7114(a)(2)(A)).
As the Authority has recognized, not all discussions between
representatives of agency management and unit employees are "formal
discussions" within the meaning of Sec. 14(a)(2)(A). Thus, in Office of
Program Operations, Field Operations, Social Security Administration,
San Francisco Region, 9 FLRA No. 9, 9 FLRA 48 (1982), as to two meetings
which occurred on December 11, 1979, at each of which one part-time
employee was informed that the practice of allowing extended work hours
was being terminated, the Authority held that, " . . . in view of the
fact that they were not scheduled in advance, were brief discussions at
the desks of the individual employees, and involved only the Hemet
Branch Manager and one employee, they were not formal discussions . .
.." /10/ (9 FLRA at 49); and as to a meeting on January 11, 1980, at
which the cessation of the practice of allowing the employees to work
extended hours, the possibility of the two employees being converted to
full-time positions, and the car pool problems of one of the employees
were discussed, the Authority held that the meeting was not a formal
discussion, stating, " . . . the meeting . . . occurred when the two
employees approached the Assistant District Manager while he was in
Hemet on other business and not as a consequence of any specific advance
arrangements"; noted that, " . . . while two other supervisors were
present . . . they were not present for the purpose of participating in
the meeting. . . . "; and concluded, "Under the circumstances, the
Authority finds that this relatively impromptu meeting, held for the
purpose of discussing the concerns of two employees, was not a 'formal
discussion' . . . . " (9 FLRA at 50).
Section 10(e) of Executive Order 11491, as amended, /11/ contained
language substantially like the language of Sec. 14(a)(2)(A) of the
Statute and, as the decisions have shown, no provision has been more
troublesome to apply. Compare, for example, U.S. Army Headquarters,
U.S. Army Training Center, Infantry, Fort Jackson Laundry Facility, Fort
Jackson, South Carolina A/SLMR No. 242, 3 A/SLMR 60 (1973) and U.S.
Department of the Army, Transportation Motor Pool, Fort Wainwright,
Alaska, A/SLMR No. 278, 3 A/SLMR 290 (1973) with Federal Aviation
Administration, National Aviation Facilities Experimental Center,
Atlantic City, New Jersey, A/SLMR No. 438, 4 A/SLMR 647 (1974) and
Department of Defense, National Guard Bureau, Texas Air National Guard,
A/SLMR No. 336, 4 A/SLMR 32 (1974). In part, the difficulty stems from
the fact that there are two distinct elements, both in the language of
Sec. 10(e) of the Executive Order and the essentially like language of
Sec. 14(a)(2)(A) of the Statute, and that both elements must be
satisfied in order to entitle representation at such meeting or
discussion namely: a) the nature of the meeting; and b) the purpose of
the meeting. The Federal Labor Relations Council, in Department of
Defense, U.S. Navy, Norfolk Naval Shipyard, FLRC No. 77A-141, 6 FLRC
1103 (1978), delineated these separate elements succinctly as follows:
" . . . the discussion or meeting for which representation is
sought must be 'formal' in nature and the topic of the meeting
must be one or more of the matters enumerated in the last sentence
of section 10(e), i.e., 'grievances, personnel policies and
practices, or other matters affecting general working conditions
of employees in the unit.' Both elements must exist for the right
of representation under section 10(e) to accrue either to the
exclusive representative or, derivatively, to the employee
involved." (6 FLRC at 1108).
Although the Authority has not, so far as I am aware, /12/ delineated
the wholly like provisions of Sec. 14(a)(2)(A) as consisting of two
separate and distinct elements, the decisions of the Authority leave no
doubt that both the nature of the meeting and the purpose of the meeting
must be considered. Thus, for example, in Kaiserslautern American High
School, Department of Defense Dependents Schools, Germany North Region,
9 FLRA No. 28, 9 FLRA 184 (1982), the Authority held that polling of
teachers did not constitute a formal discussion because, " . . . the
poll did not constitute a discussion between Principal Knight and
employees concerning personnel policies or practices or other general
conditions of employment affecting them, but rather was an information
gathering procedure . . . " (9 FLRA at 187) and in Internal Revenue
Service and Brookhaven Service Center, 9 FLRA No. 132, 9 FLRA 930 (1982)
and United States Department of the Treasury, United States Customs
Service, Region V, 9 FLRA No. 134, 9 FLRA 951 (1982), the Authority held
that interviewing of unit employees in preparation for third-party
proceedings did not constitute formal discussions within the meaning of
Sec. 14(a)(2)(A) of the Statute. /13/ On the other hand, the Authority
held, inter alia, that orientation sessions were formal discussions
because attendance of new employees was mandatory, there was an
established agenda, and the subject matter discussed involved personnel
policies, programs and general conditions of employment, Department of
Health, Education and Welfare, Region IV, Atlanta, Georgia and
Department of Health, Education and Welfare, Region IV, Atlanta, Georgia
and Department of Health and Human Services, Region IV, Atlanta,
Georgia, 5 FLRA No. 58 (1981); and that meetings for the purpose of
discussing a change in job duties and working conditions was a formal
discussion, Norfolk Naval Shipyard, Portsmouth, Virginia, 6 FLRA No. 22,
6 FLRA 74 (1981).
In two companion stipulated cases, Department of Health and Human
Services, Social Security Administration, Bureau of Field Operations,
San Francisco, California, 10 FLRA No. 24 (1982) (which involved
individual discussions with bargaining unit employees at which comments
and suggestions were solicited with regard to assignment and
distribution of work following reassignment of a unit employee); and
Department of Health and Human Services, Social Security Administration,
Bureau of Field Operations, San Francisco Region, 10 FLRA No. 25 (1982)
(which involved a group meeting at which it was announced that a unit
employee would be leaving for training and there followed a discussion
of the redistribution of that employee's pending work), the Authority
dismissed each complaint because the General Counsel had failed to
establish that Respondent violated Sec. 16(a)(1), (5) and (8) by failing
to comply with Sec. 14(a)(2)(A) and set forth the factors considered in
determining whether a meeting is "formal" in nature as follows: /14/
"(1) whether any other management representatives attended the
meeting;
"(2) where the meeting took place (i.e., in the supervisor's
office or elsewhere);
"(3) how long the meeting lasted;
"(4) how the meeting was called (i.e., with formal advance
written notice or more spontaneously and informally;
"(5) whether a formal agenda was established for the meeting;
"(6) whether employee attendance was mandatory; or
"(7) the manner in which the meeting was conducted (i.e.,
whether the employees' identities and comments were noted or
transcribed)." (10 FLRA No. 25).
Because the Authority also recognizes that meetings which are "formal in
nature" are not necessarily "formal discussions" within the meaning of
Sec. 14(a)(2)(A), the purpose of the meeting must also be considered.
As to Mr. Watkins' meeting with Ms. McLaughlin and Ms. Nicholson of
factors which the Authority stated are to be considered in determining
whether such meeting was "formal in nature", the meeting took place at
the supervisor's desk, as he had no office, as such, and each employee
had been asked to come to his "office" so that elements (2) and (6), as
set forth above, were met; but no other management representative
attended and Mr. Watkins was their first-line supervisor; the meeting
was very short; there was no formal advance written notice, but was
informally "called" by his asking each employee to come to his "office";
there was no formal agenda; and the employees' comments were not
written down or transcribed. I do not understand the Authority's
enumeration of factors to be considered in determining whether a meeting
is "formal in nature" to require that all factors must be met in order
that the meeting be "formal in nature". Indeed, as a practical matter,
rarely would all elements be present; and, clearly the decision of the
Authority in Norfolk Naval Shipyard, Portsmouth, Virginia, supra,
demonstrates that even a routine meeting by a foreman with his employees
is sufficiently "formal in nature", to constitute a "formal discussion"
within the meaning of Sec. 14(a)(2)(A) when a change of job duties is
announced. In like manner, the meeting with Ms. McLaughlin and Ms.
Nicholson, because their attendance was required and it was held at the
desk of the supervisor, would have been sufficiently "formal in nature"
as to constitute a "formal discussion" had Mr. Watkins changed their job
duties, as occurred in Norfolk Naval Shipyard, supra; but no change in
their job duties was made. To the contrary, Mr. Watkins, pursuant to
the negotiated agreement, stated that their work was not being covered
when they were off, i.e., he stated need "to meet work requirements",
and "requested" or "told them" that he would like them to go off the
four day schedule. Ms. Nicholson's testimony made it clear that Mr.
Watkins' "desire" was imperative, that he said "we would have to change
our schedules".
Mr. Watkins gave them the option of either the 8 hour, 5 day week
schedule, or the 9 hour, 5-4 (actually, 8 days at 9 hours and 1 day at 8
hours) schedule; but the only "discussion" concerned Ms. Nicholson
inquiry about her car pool, not as to whether their schedules must be
changed. Thus, the immediate supervisor told two employees that,
because of work requirements they must change their schedules. The
right to do so, "to meet work requirements", was specifically reserved
to management by the parties' negotiated agreement which, also,
specifically provided for review, as to whether "due need" was shown, by
the evaluation team; and notice was given on January 7, 1981, but the
change of schedule was not to be effective until January 12, 1981, so
that there was ample opportunity to invoke the procedures for review by
the evaluation team. In fact, Ms. Nicholson testified that, following
the meeting, she had contacted Ms. Cordes, an officer of the Union,
about the schedule changes. Under the circumstances, I conclude that
the purpose of the meeting, to inform two employees that, to meet work
requirements, they must change their schedules from the four day week,
pursuant to the terms of a negotiated agreement which provided for
review of the "due need" assertion, was not a "formal discussion" within
the meaning of Sec. 14(a)(2)(A) of the Statute.
Mr. Watkins' meeting with employees in the mail room differed in
significant respect from his meeting with Ms. McLaughlin and Ms.
Nicholson. First, he met with six or seven employees as their
second-level supervisor and Ms. Brennan, their first-level supervisor,
was also present. Second, although Mr. Watkins asserted that only
coverage of one employee's work, Mr. Arnold's, was in question, Mr.
Watkins talked to the entire group about the problem. Third, Mr.
Watkins' testimony shows that, unlike his imperative "request" to Ms.
McLaughlin and Ms. Nicholson, he was "tossing out" a suggestion as to
Mr. Arnold, ". . . suggested that probably the solution was to have Dick
change . . .." Fourth, Mr. Watkins' testimony clearly implied that,
while he may have been primarily concerned about the issuance of
supplies and forms, Mr. Arnold's responsibility, he did not limit his
remarks to this single concern. Rather, he testified that he " . . .
expressed the need for particularly the office supplies and forms area
not having full coverage . . .." Fifth, a Mr. Hal Foster, who was also
on the four day week, ". . . said he would like to go back to the eight
hours". Under the circumstances, I conclude that this meeting was a
"formal discussion" within the meaning of Sec. 14(a)(2)(A) of the
Statute. Not only was it "formal in nature" but it was a discussion
which served as a vehicle to bring into question a personnel policy or
practice, namely the compressed work schedule. Respondent, by
conducting a formal discussion with mail room employees, without notice
to the Union, which denied the Union an opportunity to be represented at
the meeting, contrary to the requirements of Sec. 14(a)(2)(A) of the
Statute, thereby violated Sec. 16(a)(1), (5) and (8) of the Statute. In
addition, Respondent thereby bypassed the Union in violation of Sec.
16(a)(1) and (5) of the Statute.
Having found that Respondent has engaged in certain conduct in
violation of Sec. 16(a)(1), (5) and (8) of the Statute, it is
recommended that the Authority adopt the following:
ORDER
Pursuant to Sec. 2423.29 of the Regulations, 5 C.F.R. 2423.29, and
Sec. 18 of the Statute, the Authority hereby orders that the General
Services Administration, Region 8, Denver, Colorado, shall:
1. Cease and desist from:
(a) Holding or conducting formal discussions with bargaining
unit employees without first providing, by appropriate advance
notice to the exclusive representative, American Federation of
Government Employees, AFL-CIO, Local 3275, an opportunity to be
represented at such formal discussions.
(b) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of rights
assured by the Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Post at its facilities in Denver, Colorado, 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 Regional Administrator 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 said notices are not altered,
defaced, or covered by any other material.
(b) Pursuant to Sec. 2423.30 of the Regulations, notify the
Regional Director of the Federal Labor Relations Authority, Region
VII, whose address is: Suite 301, 1531 Stout Street, Denver,
Colorado 80202, in writing, within 30 days from the date of this
Order as to what steps have been taken to comply therewith.
WILLIAM B. DEVANEY
Administrative Law Judge
Date: October 29, 1982
Washington, D.C.
APPENDIX
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS
AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
OF TITLE
5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS
STATUTE WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT hold or conduct formal discussions with bargaining unit
employees without first providing, by appropriate advance notice, the
exclusive bargaining representative, American Federation of Government
Employees, AFL-CIO, Local 3275, an opportunity to be represented at such
formal discussions. WE WILL NOT, in any like or related manner,
interfere with, restrain, or coerce our employees in the exercise of
rights assured by the Federal Service Labor-Management Statute.
. . . (Agency or Activity)
Dated: . . . By: . . . (Signature) 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, Region VII, whose address is:
Suite 301, 1531 Stout Street, Denver, Colorado, 80202, and whose
telephone number is: (303) 837-5224.
--------------- FOOTNOTES$ ---------------
/1/ Section 7114(a)(2)(A) of the Statute provides:
Sec. 7114. Representation rights and duties
. . . .
(a)(2) An exclusive representative of an appropriate unit in an
agency shall be given the 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 practices or other general condition of employment(.)
/2/ Watkins was at that time Chief of the Office Services Branch.
/3/ As there appears to be no dispute that the meeting was a
discussion between representatives of the agency and bargaining unit
employees, the Authority concludes that elements 1 and 3 have been met.
/4/ Contrary to the Judge, however, the Authority concludes that the
Respondent's conduct in failing to provide the Union with an opportunity
to be represented does not, standing alone, also form the basis for a
violation of section 7116(a)(5) of the Statute. Therefore, the
Authority shall dismiss this portion of the complaint. Department of
Defense, National Guard Bureau, Texas Adjutant General's Department,
149th TAC Fighter Group (ANG) (TAG) Kelly Air Force Base, 15 FLRA No.
111 (1984).
/5/ While the Judge found a bypass violation with regard to the
second meeting, he inadvertently failed to address the bypass allegation
contained in the complaint with respect to the first meeting. The
General Counsel did not except to the Judge's inadvertence.
/6/ See U.S. Department of Housing and Urban Development, 15 FLRA No.
89 (1984); Internal Revenue Service (District, Region, National Office,
Unit), 11 FLRA 69 (1982) affirmed sub nom. National Treasury Employees
Union v. FLRA, 725 F.2d 126 (D.C. Cir. 1984).
/7/ For convenience of reference, sections of the Statute hereinafter
are, also, referred to without inclusion of the initial "71" of the
Statute reference, e.g. Section 7116(a)(5) will be referred to simply as
"16(a)(5)."
/8/ Respondent's request to sever, to which General Counsel had no
objection, was granted at the hearing and the cases, although heard
seriatim, were tried, argued and briefed as separate cases and a
separate decision will be issued for each case.
/9/ As noted above, in actuality, this schedule provided for eight
days at nine hours and one day at eight hours per two-week pay period.
/10/ The Authority specifically noted that, because of its
disposition on the grounds stated, it found " . . . it unnecessary to
pass upon the Judge's comment that the presence of an exclusive
representative is not essential during announcements involving decisions
which had already been made." (9 FLRA at 49, n. 3); But cf., U.S.
Department of the Air Force, 47th Air Base Group (ATC), Laughlin Air
Force Base, Texas, 4 FLRA No. 65 (1980) (where a supervisor notified
employees individually of the anticipated closure of a snack bar and of
the leave options available during such closure, held not a formal
discussion because, "He did not attempt to bargain directly with the
employees concerning the procedures which management would use in
closing the snack bar or concerning other possible arrangements for them
other than leave . . . not a formal discussion . . . at which the
exclusive representative was entitled to an opportunity to be
represented. . . . ")
/11/ " . . . The 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." (E.O. 11491, Sec. 10(e)).
/12/ It is recognized, of course, that the Authority dismissed the
complaint in A/SLMR Case No. 908, based on the Council's holding,
Department of Defense, U.S. Navy, Norfolk Naval Shipyard, 1 FLRA No. 32,
1 FLRA 240 (1979).
/13/ The Authority cautioned, however, that the exercise of this
right would, nevertheless, violate Sec. 16(a)(1) of the Statute unless
the Agency takes necessary precautions to preserve employees' protected
rights. The Authority specifically stated the conditions which must be
met. See, in this regard, 9 FLRA at 933.
/14/ In 10 FLRA No. 24, eight factors were set forth, while in 10
FLRA No. 25, only seven factors were set forth, the difference being
that factor (1) in 10 FLRA No. 24, "whether the individual who held the
discussions is merely a first-level supervisor or is higher in the
management hierarchy" was omitted in 10 FLRA No. 25. In addition, in
describing the factors in 10 FLRA No. 24, in factor (3) there is
reference to "individual meetings". I have enumerated the factors as
set forth in 10 FLRA No. 25, which are stated in more general terms,
with full recognition that, whether individual meetings are involved or
whether a group meeting is involved, a further consideration is whether,
as stated in 10 FLRA No. 24, the individual who held the discussion was
a first-level supervisor.
In this case, Mr. Watkins was the first-level supervisor of Ms.
McLaughlin and Ms. Nicholson; but was the second-level supervisor of
the employees with whom he met in mail room.