Department of the Air Force, Ogden Air Logistics Center, Hill Air Force Base, Utah and American Federation of Government Employees, Local 1592 (Authority decision, May 8, 1985)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority in an unfair labor practice case. An aggrieved person may seek judicial review by filing a petition in an appropriate United States court of appeals within 60 days after issuance under 5 U.S.C. § 7123(a). Filing a petition does not stay the Authority's order unless the court orders a stay under 5 U.S.C. § 7123(c).

Plain-English summary

A Hill Air Force Base supervisor met with an employee to give him a revised performance appraisal after an earlier grievance. The employee asked for a union representative, but the agency held the meeting without one. The Authority dismissed the union's unfair labor practice complaint. It found that the brief, informally called meeting with a first-level supervisor was not a formal discussion that required the agency to offer union representation.

Decision snapshot

• Authority: Union representation at formal discussions under 5 U.S.C. § 7114(a)(2)(A).
• Outcome: Unfair labor practice complaint dismissed.
• Key point: A ten-minute appraisal meeting without advance scheduling, a formal agenda, or recorded comments lacked the required formality.

Full text (FLRA public release)

[ 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(.)