[ v17 p948 ]
17:0948(124)CA
The decision of the Authority follows:
17 FLRA No. 124
DEPARTMENT OF THE AIR FORCE
OGDEN AIR LOGISTICS CENTER
HILL AIR FORCE BASE, UTAH
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 1592
Charging Party
Case No. 7-CA-30386
DECISION AND ORDER
This matter is before the Authority pursuant to the Regional
Director's "Order Transferring Case to the Federal Labor Relations
Authority" in accordance with section 2429.1(a) of the Authority's Rules
and Regulations.
Upon consideration of the entire record in this case, including the
stipulation of facts, accompanying exhibits, and the contentions of the
parties, the Authority finds:
The complaint alleges that the Respondent, Department of the Air
Force, Ogden Air Logistics Center, Hill Air Force Base, Utah, violated
section 7116(a)(1), (5) and (8) of the Federal Service Labor-Management
Relations Statute (the Statute) /1/ in essence by conducting a formal
discussion with an employee in the bargaining unit represented
exclusively by the Charging Party, American Federation of Government
Employees, AFL-CIO, Local 1592 (the Union), without first notifying the
Union and affording it the opportunity to be present, thereby failing or
refusing to comply with section 7114(a)(2)(A) of the Statute. /2/
The American Federation of Government Employees, AFL-CIO (AFGE) is
the certified exclusive representative of a nationwide bargaining unit
of all nonsupervisory, nonprofessional employees of Headquarters Air
Force Logistics Command, Wright-Patterson Air Force Base, Ohio. The
Union is an affiliate and agent of AFGE for the purpose of
administration of the contract covering the bargaining unit employees
located at the Respondent's installation at Hill Air Force Base, Utah.
On March 2, 1983, Earl D. Berry, a member of the bargaining unit,
received his annual performance appraisal under the Air Force Civilian
Potential Appraisal System (CPAS). The rating official was supervisor
Raymond Hess; the reviewing official was Robert L. Welty. On March 4,
Berry and his Union representative, Coop, met with Hess at the first
(informal) step of the negotiated grievance procedure, and complained
that certain items in the CPAS were improperly graded under Article 15
of the parties' negotiated agreement. The grievance was not resolved at
this step and, after the second-step grievance proceedings, Respondent
notified Berry and the Union of its decision to resolve the grievance by
giving Berry a new evaluation.
On April 11, Hess directed Berry to accompany him to Welty's office
to give Berry his reevaluation and to talk about it. Berry requested
the presence of his Union representative, Nyland. Hess stated that he
had already discussed Nyland's presence at the meeting with Welty and a
third-level supervisor, and that they had decided that the presentation
of the reevaluation was the same as the original presentation of his
evaluation, and the Respondent did not want to establish a precedent of
having the Union present at the time of giving a performance evaluation
to an employee. At the office, Hess gave Berry the new evaluation, and
Berry indicated that he could not agree with it because it lowered a
rating in a category that had not been the subject of the grievance.
Only Hess and Berry were present, and the entire meeting lasted ten
minutes. At the conclusion of the meeting, Hess noted Berry's refusal
to sign the new evaluation, and gave Berry a copy of the unsigned
evaluation.
On May 2, the Union filed a third-step grievance over the
reevaluation of Berry on April 11. By letter dated May 23, Respondent's
Vice Commander, Musser, responded, directing that a new reappraisal be
performed, because he felt that only a reappraisal of the initially
grieved items should have been made, and that non-grieved items should
not have been changed.
The General Counsel and the Union contend that the April 11 meeting
was a "formal discussion" concerning a grievance within the meaning of
section 7114(a)(2)(A) of the Statute, and that the Respondent's failure
to notify the Union and afford it the opportunity to be present
constituted a violation of section 7116(a)(1), (5) and (8). Although
the General Counsel argues that the meeting was more than a performance
evaluation meeting, but rather was integrally related to the resolution
of a grievance, the Authority finds it unnecessary to pass upon such
contention because we conclude that the element of "formality" was
absent from the meeting.
In Bureau of Government Financial Operations, Headquarters, 15 FLRA
No. 87 (1984), the Authority held that in order for a union's rights
under section 7114(a)(2)(A) of the Statute 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 practice or other
general condition of employment. Further, in Department of Health and
Human Services, Social Security Administration, Bureau of Field
Operations, San Francisco, California, 10 FLRA 115 (1982), the Authority
noted a number of factors relevant to a determination of whether
meetings alleged to be formal discussions within the meaning of section
7114(a)(2)(A) of the Statute are in fact "formal" in nature.
Thereafter, in Defense Logistics Agency, Defense Depot Tracy, Tracy,
California, 14 FLRA 475 (1984), the Authority emphasized that such
factors were not intended to be exhaustive, and that other factors may
be identified and applied as appropriate in a particular case. Thus, in
determining formality, the Authority will consider the totality of facts
and circumstances presented.
In the particular facts and circumstances of this case, the Authority
concludes that the meeting of April 11, wherein supervisor Hess gave
employee Berry a new performance appraisal and discussed it with him,
was not "formal" in nature as contemplated in section 7114(a)(2)(A) of
the Statute. Thus, the meeting was held by Berry's first-level
supervisor, with no other management officials present; the meeting
lasted only about 10 minutes; the meeting was called informally and was
not scheduled in advance; there was no formal agenda; and Berry's
comments were not noted or transcribed.
As the April 11 meeting was not "formal" in nature, and therefore not
all of the elements in section 7114(a)(2)(A) have been found to exist,
the meeting was not a "formal discussion" within the meaning of that
section of the Statute. Bureau of Government Financial Operations,
Headquarters, supra. Accordingly, the Respondent's failure to provide
the Union with an opportunity to be represented did not violate the
Statute, and the complaint herein shall be dismissed. See Harry S.
Truman Memorial Veterans Hospital, Columbia, Missouri, 16 FLRA No. 137
(1984).
ORDER
IT IS ORDERED that the complaint in Case No. 7-CA-30386 be, and it
hereby is, dismissed.
Issued, Washington, D.C., May 8, 1985
Henry B. Frazier III, Acting
Chairman
William J. McGinnis, Jr., Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
/1/ Section 7116(a)(1), (5) and (8) provides 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(.)