15:0529(111)CA - DOD, NG Bureau, Texas Adjutant General's Department, 149th TAC Fighter Group (ANG) (TAC), Kelly AFB and AFGE Texas Air NG Council of Locals -- 1984 FLRAdec CA
[ v15 p529 ]
15:0529(111)CA
The decision of the Authority follows:
15 FLRA No. 111
DEPARTMENT OF DEFENSE
NATIONAL GUARD BUREAU
TEXAS ADJUTANT GENERAL'S DEPARTMENT
149TH TAC FIGHTER GROUP (ANG)(TAC)
KELLY AIR FORCE BASE
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, TEXAS AIR NATIONAL GUARD
COUNCIL OF LOCALS, AFL-CIO
Charging Party
Case No. 6-CA-210
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision in the
above-entitled proceeding, finding that the Respondent had not engaged
in the unfair labor practices alleged in the complaint and recommending
that the complaint be dismissed. The General Counsel filed exceptions
to the Judge's Decision, and the Respondent filed an opposition to such
exceptions.
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 hearing 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 recommendations, only to the extent
consistent herewith.
The amended complaint alleged that the Respondent violated section
7116(a)(1), (5) and (8) of the Statute /1/ by failing to afford the
Charging Party an opportunity to be represented at a formal discussion
within the meaning of section 7114(a)(2)(A) of the Statute. /2/ The
Charging Party, American Federation of Government Employees, Texas Air
National Guard Council of Locals, AFL-CIO (the Union) exclusively
represents a unit of nonsupervisory technicians employed by the Texas
Air National Guard. The alleged violation concerns a meeting of
employees called by the Respondent's Commander at which he announced
plans to extend the technicians' workweek from five days to six days in
order to meet an operational need. At the meeting, the Commander
expressed his intention of staffing the additional workday with
employees in their military capacity, but indicated that if there were
an insufficient number of volunteers for such duty, the Respondent would
then require employees to work in their civilian capacity. No prior
notice of this meeting was provided to the Union.
In his Decision, the Judge noted the Respondent's concession that no
prior notice of the meeting was given to the Union, and that the meeting
was "formal" and concerned a "general condition of employment" within
the meaning of section 7114(a)(2)(A) of the Statute. The Judge then
determined that the sole issue before him was whether the meeting
constituted a "discussion" within the meaning of section 7114(a)(2)(A).
In this connection, the Judge looked to the dictionary definition of
"discussion" and found that it contemplated some type of debate or
argument. Noting the absence of any debate or argument at the meeting
in question, the Judge concluded that the mere announcement of a new
policy did not constitute a discussion within the meaning of section
7114(a)(2)(A) and therefore that the Respondent's failure to afford the
Union an opportunity to be present was not violative of section
7116(a)(1), (5) or (8) of the Statute.
Section 7114(a)(2)(A) provides that an exclusive representative shall
be given the opportunity to be represented at formal discussions 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 conditions of employment.
/3/ As previously noted, the Respondent has conceded and the Authority
finds that the meeting herein which was held with unit employees to
outline a change in their workweek was formal in nature and concerned a
general condition of employment. The Authority further finds based on
the record that the meeting was held between a representative of the
agency and unit employees. The only issue to be decided here, in order
to determine whether the Union had a right to be represented at the
meeting in question, is whether that meeting constituted a "discussion"
as that term is used in section 7114(a)(2)(A) of the Statute. In order
to do so, it is necessary to look to the intent and purpose of section
7114(a)(2)(A).
As noted by the Judge, section 7114(a)(2)(A) is virtually identical
to the last sentence of section 10(e) of Executive Order 11491, as
amended. /4/ The latter provision was "manifestly designed to provide
the union with the opportunity to safeguard the interests of unit
employees at formal meetings held by management with those employees
concerning grievances, personnel policies and practices, or other
matters affecting general working conditions." See Statement on Major
Policy Issue, 4 FLRC 709 (1976), at 711. See also Department of
Defense, U.S. Navy, Norfolk Naval Shipyard, 6 FLRC 1103 (1978), at
1108-1109, wherein the terms "discussion" and "meeting" were used
interchangeably in the context of a case involving a factual
determination that meetings called specifically for the purpose of
terminating probationary employees constituted "formal discussions." In
enacting section 7114(a)(2)(A) of the Statute, Congress did not indicate
any intent to modify the purpose or the interpretation and application
of the virtually identical language in the predecessor Executive Order.
Rather, what legislative history exists with respect to section
7114(a)(2)(A) supports the conclusion that Congress intended to continue
treating "discussion" as synonymous with "meeting." /5/
Consistent with the foregoing, the Authority concludes that the
Judge's interpretation and application of the term "discussion" is
inconsistent with the purposes and policies of the Statute. Thus, it is
inconsistent with the intent and purpose of section 7114(a)(2)(A), i.e.,
to afford an exclusive representative the opportunity to be present in
order to safeguard the interests of unit employees, to interpret
"discussion" as requiring a debate or argument to actually occur at the
meeting. Rather, the Authority concludes that where agency management
decides to hold a "formal" meeting with unit employees concerning
grievances, personnel policies or practices, or other general conditions
of employment, section 7114(a)(2)(A) of the Statute requires management
to give the employees' exclusive representative adequate prior notice
of, and an opportunity to be present at the meeting even if the meeting
was called for the purpose of making a statement or announcement rather
than to engender dialogue. In this manner, the exclusive representative
will be assured the opportunity to hear, along with unit employees,
about matters of interest to unit employees and be in a position to take
appropriate action to safeguard those interests. To require that a
debate or argument actually occur in order for a meeting to be
considered a formal discussion under section 7114(a)(2)(A) would deprive
an exclusive representative of the right to be represented thereat
inasmuch as it could not be ascertained until after the meeting had
already taken place whether a debate or argument in fact occurred, and
would not provide a basis for determining in advance of the meeting
whether the exclusive representative should be given notice and an
opportunity to be represented. Moreover, in the Authority's view, the
section 7114(a)(2)(A) rights accorded an exclusive representative should
not be negated by a management determination to refuse to entertain
questions or engage in a dialogue at the meeting itself. Therefore, the
absence of actual dialogue may not be relied upon to justify a failure
to have given the exclusive representative prior notice and an
opportunity to be present at a formal discussion concerning grievances,
personnel policies or practices or other general conditions of
employment. /6/
Accordingly, in the instant case, the Authority concludes that the
meeting, which was called by the Respondent for the purpose of outlining
a change in the employees' workweek, constituted a formal discussion
between a representative of the agency and unit employees concerning a
general condition of employment. Therefore, the Respondent was
obligated to afford the Union prior notice of and an opportunity to be
represented at the meeting, and the Respondent's failure to do so
constitutes a failure to comply with section 7114(a)(2)(A) in violation
of section 7116(a)(1) and (8) of the Statute.
However, the Authority finds that the General Counsel has failed to
establish that the Respondent also violated section 7116(a)(5) of the
Statute by such conduct. Thus, the only unlawful conduct alleged in the
amended complaint was that the Respondent had failed to permit the Union
to be present at a formal discussion as required by section
7114(a)(2)(A). This section does not itself give rise to an obligation
to negotiate within the meaning of the Statute. Therefore, a failure to
comply with section 7114(a)(2)(A) cannot, standing alone, form the basis
of a section 7116(a)(5) violation. Accordingly, the Authority shall
dismiss that portion of the complaint.
ORDER
Pursuant to section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and section 7118 of the Federal
Service Labor-Management Relations Statute, IT IS HEREBY ORDERED that
the Department of Defense, National Guard Bureau, Texas Adjutant
General's Department, 149th TAC Fighter Group (ANG)(TAC), Kelly Air
Force Base, shall:
1. Cease and desist from:
(a) Failing to give the employees' exclusive representative, the
American Federation of Government Employees, Texas Air National Guard
Council of Locals, AFL-CIO, prior notice of and an opportunity to be
represented at formal discussions with bargaining unit employees
concerning grievances, personnel policies and practices or other general
conditions of employment.
(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) Give the American Federation of Government Employees, Texas Air
National Guard Council of Locals, AFL-CIO, the exclusive representative
of unit employees, prior notice of and an opportunity to be represented
at formal discussions with bargaining unit employees concerning
grievances, personnel policies and practices or other general conditions
of employment.
(b) Post at all of its facilities at Kelly Air Force Base, copies of
the attached Notice on forms to be furnished by the Federal Labor
Relations Authority. Such forms shall be signed by the Commander of the
149th TAC Fighter Group (ANG)(TAC), or his 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 VI, 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 complaint in Case No. 6-CA-210,
insofar as it alleges a violation of section 7116(a)(5) of the Statute,
be, and it hereby is, dismissed.
Issued, Washington, D.C., August 16, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, 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 fail to give our employees' exclusive representative, the
American Federation of Government Employees, Texas Air National Guard
Council of Locals, AFL-CIO, prior notice of and an opportunity to be
represented at formal discussions with bargaining unit employees
concerning grievances, personnel policies and practices or other general
conditions of employment.
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 give the American Federation of Government Employees, Texas
Air National Guard Council of Locals, AFL-CIO, the exclusive
representative of our employees, prior notice of and an opportunity to
be represented at formal discussions with bargaining unit employees
concerning grievances, personnel policies and practices or other general
conditions of employment.
(Activity)
By: (Signature) (Title)
Dated: . . .
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 its provisions, they may communicate directly with the Regional
Director, Region VI, Federal Labor Relations Authority, whose address
is: Bryan and Ervay Streets, Rm. 450. P.O. Box 2640, Dallas, Texas
75221 and whose telephone number is: (214) 767-4996.
-------------------- ALJ$ DECISION FOLLOWS --------------------
Major Jack L. Slaton, Esq.
For Respondent
Benito Saucedo, Jr.
For Charging Party
Alvaro Garza, Esq.
For the General Counsel
Before: Samuel A. Chaitovitz
Administrative Law Judge
DECISION
Statement of the Case
This is a proceeding under Federal Service Labor-Management Relations
Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C. 7101 et seq.
(hereinafter referred to as the Statute) and the Rules and Regulations
of the Federal Labor Relations Authority, 5 C.F.R.Chapter XIV, Sec. 2410
et seq.
Pursuant to a charge filed on August 24, 1979, and amended on October
29, 1980 and November 5, 1980, by American Federation of Government
Employees, Texas Air National Guard Council of Locals, AFL-CIO
(hereinafter called Union and Charging Party) against the Department of
Defense, National Guard Bureau, Texas Adjutant General's Department,
149th TAC Fighter Group (ANG) (TAC), Kelly Air Force Base (hereinafter
called Respondent) the General Counsel of the Federal Labor Relations
Authority (FLRA) by the Regional Director for Region 6 issued a
Complaint and Notice of Hearing on February 28, 1980, an Amended
Complaint and Notice of Hearing on March 4, 1980, a second Amended
Complaint and Notice of Hearing on April 4, 1980, and a third Amended
Complaint and Notice of Hearing on November 12, 1980. The Complaint
alleges that Respondent refused to permit the Union to be present at a
formal meeting on August 9, 1979 as required by Section 7114(a)(2)(A)
and thereby violated Sections 7116(a)(1)(5) and (8) of the Statute.
Respondent denies it violated the Statute.
A hearing in this matter was conducted before the undersigned in San
Antonio, Texas. The General Counsel of the FLRA, Respondent and
Charging Party were represented and afforded full opportunity to be
heard, to examine and cross-examine witnesses, to introduce evidence and
to argue orally. Briefs were filed and have been fully considered.
Upon the entire record in this matter, my observation of the
witnesses and their demeanor, and from my observation of the evidence, I
make the following:
Findings of Fact
At all times material herein the Union was the collective bargaining
representative for a unit of non-supervisory Texas Air National Guard
Technicians. Colonel Robert Goodman, Commander of 149th Tactical
Fighter Group, Texas Air National Guard, Kelly Air Force Base, is a
supervisor.
During early August 1979 Union Chief Steward Benny Saucedo met with
Colonel Goodman and discussed the problem of additional maintenance
coverage for the aircraft serviced by the technicians. Colonel Goodman
suggested that the Activity would somehow have to go from the customary
five day work week to a six day work week.
During the morning of August 9, 1979, Colonel Goodman, through his
section chiefs, notified the employees, including the technicians, of a
mandatory meeting to be held that day. No notice of the August 9
meeting was given to the Union. The meeting started at about 4:15 p.m.
and adjourned at about 4:30 p.m. Colonel Goodman advised the assembled
employees, including technicians, that they were approaching the date
when they were scheduled to attain combat ready status C-3 and that they
wanted to reach such status by their scheduled date. In order to
accomplish this Colonel Goodman announced that they would have to put in
6 day work weeks. Colonel Goodman stated that this would be
accomplished by making one day available, on a voluntary basis, on
military status, /7/ but that if there were not enough volunteers they
would use compensatory time, if necessary. Colonel Goodman testified
that he did not recall any questions being asked by the employees and
further testified that he answered no questions. Technician Edward G.
Alsbrook, Jr. testified that he attended the August 9 meeting.
Technician Alsbrook recalls one question being asked, the question being
"Is this going to be a requirement for all personnel or just for
CAMRON?" /8/ Technician Alsbrook does not recall the identity of the
person who asked the question or whether it was answered. In these
circumstances, it is concluded that although a question might have been
asked at the meeting, it was neither heard nor answered by Colonel
Goodman.
Conclusions
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 discussions 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."
General Counsel contends and Respondent concedes that the August 9
meeting called and conducted by Colonel Goodman was "formal" and that
the meeting, dealing with the necessity and scheduling of a sixth work
day, concerned a "general condition of employment" within the meaning of
Sec. 7114(a)(2)(A). Further there is no dispute that the Union was not
notified of the August 9 meeting and was not represented. The only
remaining issue is whether the meeting constituted a "discussion" as
that term is used in Sec. 7114(a)(2)(A) of the Statute.
In construing the words of the Statute they are presumed to be used
in their ordinary and usual sense, and with the meaning commonly
attributed to them. Banks v. Chicago Grain Trimmers, 390 U.S. 459, 465
(1968). In this regard, Webster's New International Dictionary (3rd Ed.
1961) defines "discussion" as: "consideration of a question in open
issue, informal debate: argument . . . " The Random House College
Dictionary (1973) defines "discussion" as: " . . . the act or an
instance of discussing, consideration or examination by argument,
comment, etc; debate."
In the instance case Colonel Goodman merely announced the new policy.
There was no debate or argument. /9/ It is concluded that the meeting
of August 9 did not constitute a "discussion" as the term is used in
Section 7114(a)(2)(A) of the Statute. /10/
Thus, because the August 9 meeting was not a "formal discussion"
Section 7114(a)(2)(A) did not require Respondent to give the Union
notice of the August 9 meeting and did not entitle the Union to be
represented at that meeting.
Accordingly, it is concluded that Respondent did not violate Sections
7116(a)(1)(5) and (8) of the Statute, /11/ and I recommend that the
Federal Labor Relations Authority adopt the following:
ORDER
It is hereby ordered that the complaint in Case No. 6-CA-210 be and
hereby is, dismissed.
SAMUEL A. CHAITOVITZ
Administrative Law Judge
Dated: June 12, 1981
Washington, D.C.
--------------- FOOTNOTES$ ---------------
/1/ Section 7116 provides, in pertinent part, as follows:
Sec. 7116. Unfair labor practices
(a) For the purpose of this chapter, it shall be an unfair labor
practice for an agency--
(1) to interfere with, restrain, or coerce any employee in the
exercise by the employee of any right under this chapter;
. . . .
(5) to refuse to consult or negotiate in good faith with a
labor organization as required by this chapter;
. . . .
(8) to otherwise fail or refuse to comply with any provision of
this chapter.
/2/ Section 7114(a)(2)(A) provides as follows:
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(.)
/3/ See generally Bureau of Government Financial Operations,
Headquarters, 15 FLRA No. 87 (1984).
/4/ Section 10(e) provided, in relevant part, as follows:
The (exclusive representative) 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/ As indicated by Representative Clay of Missouri in explaining the
reason why the word "formal" was added before "discussion" in the
provision of the "Udall substitute" which was later enacted into law as
section 7114(a)(2)(A) of the Statute, it was "in order to make clear the
intention that this subsection does not require that an exclusive
representative be present during highly personal, informal meetings such
as counselling sessions . . . ." 124 Cong.Rec. 29187 (1978).
/6/ That prior notice is a requirement when section 7114(a)(2)(A) is
applicable, see Norfolk Naval Shipyard, Portsmouth, Virginia, 6 FLRA 74
(1981).
/7/ The technicians are civilian employees. They are also members of
the National Guard and must put in some additional training time in
military status. This military time is distinguished from their normal
work week, which they perform in their civilian capacity.
/8/ CAMRON stands for "Consolidated Aircraft Maintenance Squadron."
These are maintenance technicians.
/9/ Although a question might have been asked by an employee, it was
neither heard nor answered by Colonel Goodman. However, even if it had
been heard the nature of the question was merely to clarify the
announcement, not to "debate" or "argue" concerning the substance or
nature of the announcement.
/10/ It should be noted that language of Section 7114(a)(2)(A) is
virtually identical to that contained in Section 10(e) of Executive
Order 11491. The construction given herein as to the meaning of the
term "discussion" in Section 7114(a)(2)(A) is consistent with its
interpretation as it was used in Section 10(e) of Executive Order 11491.
Cf. Department of the Treasury, IRS, Chicago District, A/SLMR No. 1120,
FLRC No. 78A-145, 1 FLRA No. 14; Department of the Navy, Naval Air
Station, Fallon Nevada, A/SLMR No. 432, FLRC No. 74A-80; NASA, A/SLMR
No. 457, FLRC No. 74A-95.
/11/ The issue of whether Respondent violated the Statute by
unilaterally changing working conditions was not presented in this case.