45:1332(133)CA - - Marine Corps Logistics Base, Barstow, CA and AFGE Local 1482 - - 1992 FLRAdec CA - - v45 p1332
[ v45 p1332 ]
The decision of the Authority follows:
45 FLRA No. 133
FEDERAL LABOR RELATIONS AUTHORITY
MARINE CORPS LOGISTICS BASE
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1482, AFL-CIO
DECISION AND ORDER
September 30, 1992
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This unfair labor practice case is before the Authority on exceptions filed by the Respondent to the attached Decision of the Administrative Law Judge in the above-entitled proceedings. The General Counsel filed an opposition to the Respondent's exceptions.
The complaint alleges that the Respondent violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by conducting a formal discussion with bargaining unit employees without notifying the Union and affording it the opportunity to be represented at the discussion. The Judge found that the Respondent violated the Statute as alleged in the complaint.
Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, we have reviewed the rulings of the Judge made at the hearing and find that no prejudicial error was committed. We affirm the rulings. For the reasons which follow, we conclude, contrary to the Judge, that the Respondent did not violate the Statute.
The facts, which are fully set forth in the Judge's decision, are summarized here.
On January 22, 1991, a supervisor informed a work leader that a certain project had become a priority and asked him to solicit volunteers for overtime. After soliciting volunteers, the work leader reported to the supervisor that only one employee had volunteered for overtime. The supervisor then asked the work leader to assemble a group of the employees. Approximately 10 minutes later, the supervisor met with the employees, told them that overtime was expected, that their names would be entered on the overtime roster, and that if they did not volunteer for overtime, he would initiate mandatory overtime. The meeting lasted approximately 10 minutes.
III. Judge's Decision
The Judge found that the January 22 meeting was a formal discussion within the meaning of section 7114(a)(2)(A) of the Statute. The Judge noted that, consistent with longstanding Authority precedent, the fact that a meeting is called for the purposes of making an announcement, rather than engaging in dialogue, is not relevant in determining whether a formal discussion occurred. The Judge also concluded that the meeting was formal. Based on the Authority's decision in U.S. Department of Labor, Office of the Assistant Secretary for Administration and Management, Chicago, Illinois, 32 FLRA 465, 470 (1988) (Labor), the Judge found that the meeting was formal because it was not "spontaneous" and, instead, the affected supervisor "thought through his plans for the meeting in advance." Judge's Decision at 5.
The Judge did not address the Respondent's contention that its actions in holding the meeting were privileged under Article 15 of the parties' collective bargaining agreement.(1) However, the Judge rejected the Respondent's contention that it was not obligated to notify the Union of the meeting because the Union steward was present at the meeting. The Judge noted that under Authority case law the fact that an employee union representative is present at a meeting "does not relieve an agency of its statutory obligation to provide notice in advance to allow union participation, if required." Id. at 6. As the Respondent admittedly failed to provide the Union notice of the January 22 formal discussion and an opportunity to attend it, the Judge found that the Respondent violated section 7116(a)(1) and (8) of the Statute.
IV. Respondent's Exceptions
The Respondent argues, among other things, that the Judge erred in concluding that the disputed meeting was a formal discussion. The Respondent asserts, in this regard, that the Judge "chose to ignore all factual evidence indicating the informal nature of the gathering and seemed to base his formality decision on the fact that [the supervisor] knew in advance (albeit moments in advance) that he was going to place the [affected employees] on overtime." Exceptions at 7.
V. General Counsel's Opposition
The General Counsel argues, as relevant here, that the Judge's conclusion that the disputed meeting constituted a formal discussion is consistent with Authority precedent interpreting section 7114(a)(2)(A) of the Statute. In particular, the General Counsel contends that the Judge's conclusion that the meeting was sufficiently formal is consistent with Department of the Air Force, Sacramento Air Logistics Center, McClellan Air Force Base, California, 29 FLRA 594 (1987) (McClellan).
VI. Analysis and Conclusions
We find that the Respondent did not violate the Statute by failing to provide the Union with notice of and the opportunity to attend the January 22 meeting because, for the following reasons, we conclude that the meeting was not a formal discussion under section 7114(a)(2)(A) Statute.
In determining whether a discussion or meeting is formal, within the meaning of section 7114(a)(2)(A) of the Statute, the Authority considers the totality of the facts and circumstances in a case. See generally, National Treasury Employees Union v. FLRA, 774 F.2d 1181, 1189-91 (D.C. Cir. 1985) (NTEU v. FLRA). Among other factors, the Authority examines: (1) whether the individual who