49:1173(112)CA - - VA Medical Center, Gainsville, FL & AFGE, Local 2779 - - 1994 FLRAdec CA - - v49 p1173

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[ v49 p1173 ]
The decision of the Authority follows:

49 FLRA No. 112











(Charging Party/Union)




June 1, 1994


Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This unfair labor practice case is before the Authority on exceptions filed by the General Counsel to the attached decision of the Administrative Law Judge. The Respondent filed an opposition to the General Counsel's exceptions.

The complaint alleged that the Respondent violated section 7116(a)(1) and (8) of the Federal Service Labor-Management Relations Statute (the Statute) by holding a formal discussion with bargaining unit employees on November 8, 1991, without affording the Union notice and an opportunity to be represented at the discussion as required by section 7114(a)(2)(A) of the Statute. The Judge found that the Respondent did not violate the Statute and recommended that the complaint be dismissed in its entirety.

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, we have reviewed the rulings of the Judge made at the hearing and find that no prejudicial error was committed. We affirm the rulings. Upon consideration of the Judge's decision and the entire record, we adopt the Judge's findings, conclusions, and recommendation that the complaint be dismissed.

As the Judge correctly noted, in order to find that a union has a right to representation under section 7114(a)(2)(A) of the Statute, it must be shown that the following elements exist: (1) there must be a discussion; (2) which is 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. See Veterans Administration Medical Center, Long Beach, California, 41 FLRA 1370, 1379 (1991), enforced, 16 F.3d 1526 (9th Cir. 1994); and Veterans Administration, Washington, D.C. and VA Medical Center, Brockton Division, Brockton, Massachusetts, 37 FLRA 747, 753 (1990).

As the Judge also correctly noted, "the Authority will always look at the totality of the facts and circumstances of [each] case before making its determination." Judge's Decision at 8. See Marine Corps Logistics Base, Barstow, California, 45 FLRA 1332, 1335 (1992) (Barstow). The Judge found that, although there were some factors favoring a finding that the meeting was formal in nature, there were other factors favoring a finding that the meeting was not formal. Applying the principle of Barstow to this case, the Judge found that the meeting of November 8, 1991, was not a formal discussion within the meaning of section 7114(a)(2)(A) of the Statute because, based on the totality of the facts and circumstances, he concluded that the meeting was not formal in nature and did not concern any personnel policy or practice or other general condition of employment. In reaching these conclusions, the Judge, among other things, specifically rejected the General Counsel's arguments that: (1) the purpose of the meeting was to advise employees that they could be disciplined if they failed to do their jobs; and (2) the meeting included the announcement of a new disciplinary policy and new work requirements.

The General Counsel contends that "the record evidence supports" a finding that the meeting was a formal discussion and that the Judge misapplied Authority case law by an "improper weighing of the totality of facts . . . ." Brief in Support of Exceptions at 1-2. We disagree.

The General Counsel argues that the Judge erred in finding that the employees' attendance at the meeting was not mandatory. The Judge found that, although employees' attendance was expected by management, the meeting took place in the work area where food orders were filled, and employees were permitted to leave the meeting in order to fill food orders. This finding is supported by the record evidence and, accordingly, we find that the Judge properly concluded that attendance was not mandatory.

The Judge additionally found that, although higher-level management officials were present at the meeting, the meeting was conducted by the first-level supervisor. The General Counsel asserts that because the Judge failed to note that the supervisor stopped the meeting while one higher-level official left the meeting, the Judge gave "inordinate weight to who conducted the meeting, while ignoring that the Authority also examines who was present at the meeting." Id. at 5. We find that the Judge's failure to note that the meeting was stopped while a management official left the meeting does not amount to a failure to properly weigh the totality of the factors regarding formality.

The Judge noted that there was a pre-determined, written agenda that was used as a record of the meeting, and that any new topics and the name of the person introducing the new topics were noted on the written agenda as minutes. The General Counsel contends that the Judge erred in failing to find that the meeting was transcribed and that the transcription was evidence of formality. Without deciding whether the note-taking amounted to transcription, we find that the General Counsel has failed to demonstrate that the Judge erred in not making the specific findings urged by the General Counsel. The Judge specifically found that one of the factors representing formality in this case was that a written agenda was pr