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45:1332(133)CA - - Marine Corps Logistics Base, Barstow, CA and AFGE Local 1482 - - 1992 FLRAdec CA - - v45 p1332

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[ v45 p1332 ]
The decision of the Authority follows:

45 FLRA No. 133










(Charging Party/Union)




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.

II. Facts

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 held the meeting is a first-level supervisor or is higher in the management hierarchy; (2) whether any 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 employee attendance was mandatory; and (8) the manner in which the meeting was conducted. For example, Labor, 32 FLRA at 470.

In this case, the disputed meeting was held on the shop floor and lasted only 10 minutes. Thus, neither the length nor the location of the meeting suggest that it was a formal discussion of working conditions. In addition, it is undisputed that: (1) only one management official, a first-level supervisor, attended the meeting; (2) no agenda was prepared for the meeting; and (3) no notes of the meeting were taken. In our view, these matters, which indicate how management intended to conduct, and conducted, the meeting also support a conclusion that the meeting lacked requisite formality to satisfy the requirements of section 7114(a)(2)(A) of the Statute.

It is undisputed that the meeting was called to solicit volunteers for overtime and to explain both the need for overtime as well as the procedures by which overtime would be assigned if an insufficient number of employees volunteered. No other employment-related matters were discussed. As we conclude that the meeting was not a formal discussion, we do not determine whether, as asserted by the Respondent, its actions in holding the discussion were privileged under the parties' agreement. However, in assessing the formality of a discussion, we find it relevant that the evident purpose of the meeting was to comply with and implement the agreement.

Moreover, although the Judge correctly observed that the supervisor "thought through his plans for the meeting in advance[,]" it is clear that only 5 or 10 minutes elapsed between the supervisor's decision to hold the meeting and the commencement of the meeting itself and that, as noted previously, the supervisor's planning did not include an agenda. Judge's Decision at 5. As such, we conclude that while the meeting may not have been spontaneous, neither was its planning such that this factor supports a conclusion that the meeting was a formal discussion. Compare NTEU v. FLRA, 774 F.2d at 1190 (in discussing whether a meeting was spontaneous, the court noted that "[f]or an attorney and two labor relations specialists to meet at the office of one of the labor relations specialists and in a single day interview all of the witnesses to be called at an MSPB hearing surely indicates some advance preparation.").

Finally, the decisions relied on by the Judge and the General Counsel do not support a conclusion that the disputed meeting was a formal discussion. In Labor, relied on by the Judge, the disputed meeting occurred pursuant to an agreement made over 1 week in advance that specified the attendees as well as the agenda for the meeting; a unit employee was formally questioned by a management representative at the meeting and the employee's answers were evaluated by other management representatives. 32 FLRA at 470-71. In McClellan, relied on by the General Counsel, the disputed meeting, which was scheduled 5 days in advance, was held in a management representative's office, where a unit employee was questioned by the representative and notes were taken of the employee's answers. 29 FLRA at 603.

Considering the totality of the facts and circumstances in this case, we conclude that the January 22 meeting did not constitute a formal discussion, within the meaning of section 7114(a)(2)(A) of the Statute. Accordingly, the Respondent's failure to notify the Union of the meeting and afford it an opportunity to be represented at it did not violate the Statute. Therefore, without addressing the Respondent's other arguments, we will dismiss the complaint.

VII. Order

The complaint is dismissed.

(If blank, the decision does not have footnotes.)

1. That article, entitled "Overtime," provides, in pertinent part:

Section 3 Notification. Management will normally notify the employees of planned overtime . . . at least forty-eight hours in advance . . . . If an overtime situation exists which precludes the normal notification, the supervisor will notify the employees when he or she makes the determination.

Section 4 Distribution.

. . . .

b. When special skill or familiarity . . . are not required . . . supervisors will solicit volunteers for such overtime assignment by announcing the particulars of the overtime assignment to employees in the needed job category who are on duty at the time. If more employees volunteer than are needed, the supervisor shall go to the voluntary overtime roster . . . .If there are no or too few volunteers . . . the supervisor shall go to the mandatory roster . . . .

Jt. Exh. 1.