Monday, July 2, 2012

Formal Discussion

A few days ago, I was helping a Local deal with a departmental meeting that the Union found out about literally minutes before the meeting was going to start.  Department meetings fall under the category of Formal Discussion under Title 5, 7114.  To fail to give the Union the opportunity to be present at the meeting is an Unfair Labor Practice.  Here's an excellent breakdown on the subject from the FLRA.

Formal Discussion

A.     Purpose of the Right

The Statute grants a union the right to be represented at a formal discussion in order to represent the institutional interests of the exclusive representative. [n2]  The rights in section 7114(a)(2)(A) were intended to allow a union to be present at meetings, of a more formal than informal impromptu nature, between managers and employees that concerned a matter pertaining to the workplace so that the institutional views of the union could be represented.  [n3]  The intent is that the union's presence and participation will enable the meeting to be successful and productive. The union representative brings an institutional perspective to the meeting. 

The agency has a right under the section 7106(a) to meet with employees about the work and about working conditions.  [n4]  However, the exclusive representative is afforded the right to be present and represent the interests of the bargaining unit at formal discussion meetings. For example, as a participant at a formal discussion, the union representative may help to clarify the matters being discussed. A union representative's participation may also result in a productive dialogue between agency officials and employees on the subject matter at issue and avoid misunderstandings of what is said and not said at such meetings and of what action, if any, the agency will be taking next. The presence of a union representative also may result in the "tough" questions being asked by the union representative, rather going unasked due to either reluctant unit employees, or employees that are not asked to view the subject matter from the institutional perspective or that do not possess the same background in the subject matter as the union representative. 

Thus, the union's presence at a formal discussion concerning general working conditions as envisioned by Congress in enacting the Statute was intended to improve the quality of the discussion and allow unions to protect their institutional rights to be the employees' sole representative. When properly implemented, the formal discussion right benefits all participants -- the agency, the union and the employees. Thus, it is not the right which gives rise to conflict and litigation, but rather the lack of understanding about the right, its implementation and the union's role. After discussing the legal requirements before this right attaches, this Guidance will offer some suggestions to obtain that understanding and avoid that type of conflict so as to obtain the intended benefits of formal discussions. 

B.     Elements of a Formal Discussion and Its Implementation

This section describes the legal requirements of a formal discussion, and other related legal issues surrounding the implementation of this statutory right. 

1.     Statutory Language 
Section 7114(a)(2)A) of the Statute provides: 

§ 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; . . . 
Thus, in order for the section 7114(a)(2)(A) formal discussion right to exist, there must be: (1) a discussion; (2) which is formal in nature; (3) between at least one or more agency representatives and one or more unit employees or their representatives; (4) concerning any grievance or personnel policy or practices or other general condition of employment. [n5]  The Authority examines the totality of the circumstances presented in each case, guided by the intent and purpose of the section. [n6]  A failure to afford a union an opportunity to be represented at a section 7114(a)(2)(A) formal discussion constitutes a violation of section 7116(a)(1) and (8) of the Statute. 

2.     Discussion

There does not have to be an actual discussion, debate or dialogue between agency officials and unit employees. Rather, for purposes of section 7114(a)(2)(A), a meeting is synonymous with a discussion. Thus, if the other requirements of section 7114(a)(2)(A) are met, a meeting for the sole purpose of making a statement or announcement, rather than to engender dialogue, is a formal discussion. The exclusive representative is thus assured of the opportunity to hear, along with unit employees, about matters of interest to unit employees and to be in a position to take appropriate action to safeguard employee and union interests. [n7]

3.     Formality

The Authority examines the purpose and nature of a discussion, as well as several illustrative factors set forth in Authority precedent [n8]  in determining whether a discussion is formal in nature. [n9]  A review of the precedent identified in Appendix A reveals that the more significant the subject matter of the discussion, the less the Authority will rely upon the illustrative factors to establish formality and vice versa. For example, the Authority in some cases has found the purpose of the discussion sufficient in itself to establish formality, such as interviews by agency representatives with bargaining unit employees in preparation for third-party proceedings, such as MSPB proceedings. [n10]  In other cases, the Authority has considered the purpose of a discussion as one factor among others when assessing the formality among the other illustrative criteria. [n11]  The chart in Section D of this Part contains a question-type checklist to assist union representatives and management when considering the totality of the circumstances when determining whether a discussion is formal in nature. 

4.     Participants in the Discussion

A representative of the agency must participate for a meeting to trigger a union representational right. The management or supervisory authority of the representative is not relevant in deciding whether the agency participated,  [n12]  although it may have an impact in determining whether the meeting was formal in nature. Further, a contractor may also serve as a representative of an agency. [n13]

5.     Subject Matter of the Discussion 

To be a formal discussion, the meeting must concern either "any personnel policy or practices or other general condition of employment" or a "grievance." The test for deciding whether the meeting concerns "any personnel policy or practices" is whether the subjects of the meeting are general rules applicable to agency personnel. To be a "general condition of employment," the matter must concern conditions of employment affecting unit employees generally. [n14]  There usually is not significant disagreement over this requirement. 

However, there continues to be disagreement over the application of the term "grievance" for formal discussion purposes. Section 7103(a)(9) of the Statute defines the term "grievance" broadly to include "any complaint . . . by any employee concerning any matter relating to the employment of the employee. . . ." Authority precedent holds that the term "grievance" for formal discussion purposes should be interpreted in light of its broad statutory definition. [n15]  Thus, the initial, informal stages of a grievance procedure [n16]  and statutory appeals have been found to be grievances for formal discussion purposes.  [n17]  Also, to be considered a "grievance" for purposes of a formal discussion, the matter does not have to be subject to the negotiated grievance procedure. [n18]  Further, a meeting that does not begin as a formal discussion, may nonetheless develop into or become a formal discussion. [n19]

There are, however, differing views on whether a potential grievance is sufficient to trigger the formal discussion right. One view is that a potential grievance is sufficient to trigger the formal discussion right. [n20]  The other is that to be a "grievance for formal discussion purposes, there is a need to be either a meeting that takes place where a final decision has been made by the agency, a statutory procedure has been invoked, or an informal or formal negotiated grievance has been filed. [n21]

The chart in Section D of this Part contains a question type checklist to assist union representatives and agency officials when considering whether a discussion is formal in nature. 

6.     Notice of the Meeting

Section 7114(a)(2)(A) of the Statute requires prior notification so that the union has the opportunity to choose its own representative. Thus, "actual representation" at the meeting is not sufficient if the union did not have sufficient notice to choose its own representative. [n22]  For example, just because a union representative happens to be at a formal discussion does not satisfy the representational right. However, where a union official receives "actual notice" of a meeting, but does not receive "formal notice" as a union representative, the Authority determines whether that receipt was sufficient to establish that the union had an opportunity to be represented, including the opportunity to designate a representative of its own choosing." [n23]  In sum, "actual representation" is not sufficient, but "actual" versus "formal" notice may be sufficient notice. 

7.     Union Participation in the Meeting

The right to be represented at formal discussions means more than merely the right to be present. The right also encompasses the opportunity to speak, comment and make statements, although it does not extend to taking charge of, usurping or disrupting the meeting. [n24]  The extent of this participation will vary depending upon the purpose of the meeting and the surrounding circumstances. For example, when formal discussions occur in the course of statutory appeals procedures, such as appeals within the jurisdiction of the MSPB, the union's institutional role is more restricted than, for example, its role in a negotiated grievance procedure. [n25]  Moreover, a union representative's participation is governed by a rule of reasonableness, which requires that there be respect for orderly procedures. [n26]

8.     Unfair Labor Practice Remedy 

a.     Traditional and Nontraditional Remedies for Formal Discussion Violations 
In addition to a traditional cease and desist order and a remedial posting, the Authority affirmatively orders the agency to provide prior notice to the union and the opportunity to be represented at any formal discussions. A nontraditional remedy for a formal discussion violation is to re-hold the meeting to enable the union to ask questions and make comments as if it had been given notice of the meeting and an opportunity to actively participate, as required by the Statute. A similar nontraditional remedy is to allow the union to convene a meeting among the unit employees who attended the formal discussion on duty time at the same location and for the same time period to allow the union to respond to the discussion at the meeting and answer employee questions about the subject matter. 

b.     Evidence to Establish a Nontraditional Remedy 
To determine whether a nontraditional remedy for a formal discussion violation is appropriate, the evidence should be developed to establish: 

the extent to which the meeting left employees uncertain as to what position and action the unio3n has taken about issues discussed; 
the extent it appeared to the employees that the union was in agreement with management, when in fact the union had positions which the employees should have heard; 
whether the meeting concerned a sensitive or "hot button" issue that resulted in employees later seeking advice or clarification from the union; and 
whether the employees are geographically dispersed, subject to different shifts, or otherwise difficult for the union to reach.  [n27]

C.     What Should Happen at a Formal Discussion - Role of the Parties

As noted above at section A of this Part, an agency is entitled to conduct meetings and accomplish the purpose of the meeting, whether it is to merely impart information to employees, give guidance or instructions, or obtain employee feedback on work-related issues. [n28]  The union is also entitled to actively participate on behalf of the unit employees and present, as appropriate, its institutional perspective. In other words, as in collective bargaining situations, the union representative is not just another unit employee expressing his/her personal opinions, but rather is serving as a representative of the bargaining unit. As noted above in Section B. 7. of this Part describing the legal parameters of the union's right to actively participate, a balance must be struck between the agency's right to conduct the meeting and provide to, and receive from, the employees useful information, and the union's right to represent the union's institutional view. These two interests are not in conflict, and if implemented properly, may coexist and result in successful meetings from both parties' perspective. However, if either party does not understand or accept its role, the potential for conflict is great. 

In my view, it is a lack of a common understanding of both parties' roles at a formal discussion that often gives rise to conflict. Unfortunately, based on a history of unsuccessful meetings with the union present, some agencies at times take steps to avoid giving notice to the union in an attempt to avoid the potential for what they view as a disrupted and unsuccessful meeting. This reaction only causes more mistrust and conflict when the occasion arises that the union is afforded the opportunity to attend such a meeting. Similarly, and also just as unfortunate, at times some unions view their role as hindering the agency from accomplishing the purpose of the meeting. In both of these types of scenarios, the intent underlying the formal discussion statutory provision -- to provide the union with an opportunity to represent unit employees at such meetings -- is undermined. The strategies referred to in section E of this Part, in my view, may assist both agencies and unions from falling into this type of recurring conflict. 

D.     Formal Discussion Checklist

The following are questions which may assist union representatives and agency officials to determine whether a planned meeting is a formal discussion. The goal is to make the proper determination before a meeting occurs, rather than evaluating whether the agency violated the Statute after the meeting has taken place.
FORMALITY Do you intend to require employees to attend?Do you intend to make attendance voluntary?

Do you intend to take notes or minutes or record the results of the meeting, use an agenda or a plan for conducting the meeting? 
Do you intend to have a casual conversation?
 FORMALITY Do you intend to hold the meeting in a conference room or other non-workplace area?Do you intend to hold the meeting on the shop floor?
 FORMALITY Do you intend to invite higher level management officials or other agency employees not involved in the day-to-day work with the employees?Do you intend to only have a first line supervisor present?
FORMALITY Do you intend to schedule the meeting in advance?Do you intend to inform employees just before the meeting is to take place to gather together?
FORMALITY  Do you intend to conduct the meeting for a scheduled amount of time?  Do you intend to plan to only talk for a few minutes?
 FORMALITY Do you intend to discuss a significant topic of concern to the employees and the union?Do you intend to discuss a routine topic?
SUBJECT MATTER  Do you intend to discuss any pending grievance, whether at the informal or formal stages of the negotiated grievance procedure? Do you intend to discuss a matter of concern raised by a particular employee?
SUBJECT MATTERDo you intend to discuss a workplace matter of concern to employees generally?  Do you intend to meet only with one employee to discuss a performance matter that concerns only the employee?
SUBJECT MATTERDo you intend to discuss a personnel policy that perains generally to all employees? Do you intend to meet with one or a few employees to discuss the routine monitoring of job functions?
SUBJECT MATTERDo you intend to discuss with one employee a formally proposed or final decision on a performance or disciplinary matter? Do you intend to discuss an employee's job performance or conduct?   
SUBJECT MATTERDo you intend to discuss a formal EEO complaint?
Do you intend to discuss an informal EEO complaint?

The following is a general list of the actions which an exclusive representative may and may not take with respect to a formal discussion.

Designate its own representative to attend the formal discussion

Ask management for a short delay so that a representative versed in the subject matter of the meeting may attend to represent the union
Unreasonably delay the meeting because a particular representative is not able to attend at the scheduled time
Insist that more than one union representative attend

Designate a particular individual (with backup) as the union official to receive notice of all formal discussions or designate different individuals depending upon the type of meeting Refuse to attend a formal discussion where there has been actual notice which allowed the union to select a representative of its choice, but there was no formal notice of the meeting
Ask management what the meeting is going to be about 
Demand that all information to be discussed at the meeting first be discussed only with the union (assuming the meeting would not be a bypass)
Demand that other unrelated topics be added to the agenda
Clarify matters being discussedEngage in an argument with the management officials conducting the meeting which interferes with the purpose of the meeting
Represent the interests of the bargaining unitRaise issues that are not related to the topic or purpose of the meeting so as to disrupt the meeting and thwart its purpose
Speak, comment and make statements about the subject matter of the meetingTake charge of the meeting so as to disrupt the meeting and thwart its purpose
Ask questions concerninc the matter being discussedAct in a manner that disrupts the meeting
Propose to negotiate at the applicable time over the manner in which the formal discussion right will be implemented by the partiesInsist that the notice be given and meeting be conducted in a particular manner as decided by the union

E.     Strategies to Avoid Formal Discussion Conflict

Before exploring strategies to assist the parties in avoiding conflict on formal discussion issues, it is essential, in my view, for the parties to first understand and accept the purpose of allowing unions to be represented at formal discussions, as presented at section A above, and the respective roles of the parties, as noted above in section C. If an agency does not understand or accept that a union brings value to an agency meeting with unit employees, it will be extremely difficult for an agency to develop a constructive strategy to obtain the most benefit from the union's presence. Similarly, if a union does not understand and accept that an agency has a right to hold meetings with unit employees and impart and receive information, it will be extremely difficult for a union to develop a constructive strategy to obtain the most benefit from its presence at the meeting. 

Once the parties understand and accept their roles and the role of the other party at a formal discussion, the following strategies are offered to assist the parties in obtaining the maximum benefit from the meeting.

1.     Notice of Meeting to Designated Union Representatives

Misunderstandings sometimes arise concerning the notice that an agency is required to give to the union to afford the union the opportunity to chose a representative to attend the formal discussion. These misunderstandings may concern such issues as who is to receive notice for the union, the timing of the notice and the scheduling of the meeting, and information that is disclosed and shared about the meeting beforehand. 

a.     Union Designates Representative to Receive Notice 
Just as a union may designate certain union officials to receive notices of changes in conditions of employment, a union may consider designating certain officials to receive notice of formal discussions. Designation of a specific individual, with appropriate backup, should avoid situations where an agency believes that it has given sufficient notice to the union but the individual that received that notice, although a union official, is not the individual who has been given any responsibility by the union for these types of matters. A union may designate different individuals to receive notice based on the grouping or location of the employees to be in attendance at the meeting, or the union could consider designating union officials to receive notice by the subject matter of the meeting. Regardless of the criteria used by the union, the union must clearly and specifically provide the agency with its designations and alternative designations if the primary contact is not available to receive notice. The union is not bound to designate its representative for the meeting to be the same individual that receives notice, although this may be a preferable option, especially if, as suggested below at subsection c, pre-meeting information is available. 

Sometimes it is unclear if the union received proper notice, or even if no proper notice was given, if the union nonetheless had actual notice of a scheduled formal discussion. In my view, should a union learn of a scheduled formal discussion, whether or not the union believes the notice was proper, the union should inquire of the agency, rather than not attend and claim lack of notice. By contacting the agency, the union may clarify whether, if in fact, a formal discussion meeting is scheduled and prepare to represent the employees at that meeting. Waiting for the meeting to take place, not attending, and then alleging a violation, is a risky strategy which does not usually result in any of the union's interests being met. On most occasions, the agency may be under the impression that either it gave proper notice of the meeting or that the meeting at issue does not trigger a representational right. By contacting the agency, the union may explore these issues together with the agency, rather than engage in subsequent accusations and potential litigation. 

b.     The Timing of the Notice and Scheduling of the Meeting 
An agency has the right to schedule its meetings to best meet its needs. As noted above in section B. 6., however, an agency still is required to give sufficient notice that enables the union to designate a representative for the meeting. Conflict sometimes arises when an agency gives notice of a scheduled meeting and the union claims that the representative of choice is unavailable for that specific date. In these circumstances, the parties have choices. Either they can stick to the perceived correctness of their positions and the meeting is held without the union present and litigation ensues, or the parties can engage in a constructive dialogue in an attempt to accommodate their respective interests. I suggest the latter strategy. The agency should clarify why the meeting was scheduled for the specific date and time. The union should clarify why it has no other representative to attend the meeting and should offer alternative times and dates. Both parties should work towards an accommodation. 

c.     Exchange of Information Prior to a Formal Discussion 
As in all labor-management relationships, the lack of communication and shared information may result in increased distrust and confusion. I suggest that to the extent practicable, agencies share with their union counterpart information that will enable the union to be an effective participant at the meeting to ensure a successful meeting. Sometimes conflict is created when the union is not aware of the purpose or subject matter of the meeting. The lack of information leads to assumptions and presumptions that may not be accurate, but which are real to the union, resulting in a negative reaction even before the meeting begins. The exchange of any agenda, handouts, and background information may alleviate concerns over the meeting and the subject matter. A short briefing before the meeting may even enable both parties to work together toward a common meeting goal. Any misconceived notions about the meeting and its purpose could be briefly explored and rumors dispensed with. These pre-meeting briefings need only be a few minutes and, in fact, this type of information could be exchanged in a short conversation when notice of the meeting is given. Under that process, the union would be better equipped to select its representative or for that matter, to decide if it even needs to be represented at the meeting. In my view, it is the lack of information prior to the meeting that often precipitates conflict. A little shared preparation can go a long way to improving the chances of success of the meeting from both parties' perspective. The parties could share their concerns, and any misunderstandings that are not really issues could be resolved and put to rest. For example, either party might raise a concern that is based on misinformation or the lack of information and which, in reality, is not even an issue, and the other party could lay that concern to rest. Again, as in all labor-management relationships, shared information and communication is the beginning to an improved relationship and productive labor-management relations. 

2.     Understanding How the Union Representative Will Participate

This Guidance has addressed the purpose of union representation at formal discussions and the roles of the parties at those meetings. I suggest that the parties take a step beyond only understanding these concepts. Rather, the parties may decide how they will jointly interpret and apply these principles. The parties may develop a protocol that allows for union participation which balances the agency's need to run an efficient meeting and achieve the meeting's purpose. For example, the parties may agree that the union is given a certain time slot to ask questions or to clarify certain matters or to present the union's perspective and interests during the meeting. The parties could insert certain points as the topics may change for the union to participate or may reserve a time prior to the close of the meeting for union participation. Whatever the protocol agreed upon, the union will go into the meeting knowing that it will be afforded a real opportunity to participate and the agency knows that it will be able to conduct its meeting without disruption or interference. In other words, the parties are encouraged to develop their own process so that disputes about the degree, timing and character of the union's participation does not become an issue for disagreement, conflict and litigation, overshadowing the importance of the subject matter of the meeting. The parties may agree to a general protocol for all meetings. Or, the parties may group meetings into categories with the type of participation dependent upon the category, such as those where the agency is giving instructions, imparting information, or seeking employee feedback. The parties also could decide on the type and timing of participation on a meeting by meeting basis. What is key, however, is that the parties share an understanding prior to the meeting as to how to accommodate the agency's interest in running a meeting without disruption and the union's interests in actively participating at the meeting. 

3.     Recognition During the Meeting of Statutory and Contractual Obligations

Disputes sometime arise when a union is concerned that its rights under the Statute and contract will not be recognized as a result of what transpires at a formal discussion meeting. As a result, the union may react to that concern at the meeting. This concern may be satisfied if an agency during the meeting makes it clear that it is aware of its responsibilities under the Statute and contract and intends to fulfill those obligations with respect to the subject matter. For example, an agency may hold a meeting to obtain feedback and test ideas about a non- negotiable work process. The union may be concerned that the agency is going to implement a decision about the work process as a result of the meeting without first fulfilling any applicable statutory bargaining or contractual obligations. The acknowledgment by an agency to the employees and the union that it is aware of and intends to fulfill its statutory and contractual responsibilities may alleviate this concern and avoid any union reaction in response to that concern. Similarly, the union may state its intention of exercising its rights under the Statute and contract with respect to the subject matter. In either instance, the recognition and acknowledgment of the need to comply with the Statute and the contract should alleviate concerns that may otherwise arise where that acknowledgment is absent. 

4.     Routinely Scheduled Meetings

Some meetings are routinely scheduled by an agency at a certain date, time and place. For example, an agency may hold a meeting with all employees in a certain work unit at the same time and place every week, every two weeks or once a month. In these types of circumstances, the parties may come to a useful pre-arrangement regarding notice, sharing information and participation. 

5.     Protocol for Scheduling

Under section 3 above, I suggested the parties consider developing a protocol for the union's participation at formal discussion meetings. The parties may also decide to agree upon a protocol for how notice is given and meetings are scheduled. For example, the parties may agree that certain steps are taken for giving notice and information to the union about scheduled formal discussions. Or, the parties can jointly identify factors that will be applied to the manner in which notice is given and meetings are scheduled. Whatever the agreement, the key is to have an understanding about these issues ahead of time so that disputes do not arise, or those that do materialize can be readily resolved. 

Footnote # 2 - Part II 

   The relationship between a formal discussion and a grievance being processed under the negotiated grievance procedure is discussed in Part IV. 


Footnote # 3 - Part II 

Legislative History of the Federal Service Labor-Management Relations Statute, Title VII of the Civil Service Reform Act of 1978 (Comm. Print 1979) (Legislative History) at 957. 


Footnote # 4 - Part II 

See Part IV for a discussion of the concept of a bypass; i.e., when management may not deal directly with unit employees, regardless of whether the union is represented at the meeting. 


Footnote # 5 - Part II 

U.S. Department of Justice, Immigration and Naturalization Service, New York Office of Asylum, Rosedale, NY, 55 FLRA No. 170, 55 FLRA 1032, 1034 (1999) (INS Rosedale). 


Footnote # 6 - Part II 

U.S. Department of Justice, Bureau of Prisons, Federal Correctional Institution (Ray Brook, New York), 29 FLRA No. 52, 29 FLRA 584, 588-89 (1987) (FCI, Ray Brook), aff'd, 865 F.2d 1283 (D.C. Cir. 1989). 


Footnote # 7 - Part II 

Department of Defense, National Guard Bureau, Texas Adjutant General's Department, 149th TAC Fighter Group (ANG) (TAC), Kelly Air Force Base, 15 FLRA No. 111, 15 FLRA 529, 532-33 (1984) (Kelly TAC) (announcement of a new policy was a discussion). 


Footnote # 8 - Part II 

The Authority examines such facts as (1) the status of the individual who held the discussions; (2) whether any other management representatives attended; (3) the site of the discussions; (4) how the meetings for the discussions were called; (5) how long the discussions lasted; (6) whether a formal agenda was established for the discussions; and (7) the manner in which the discussions were conducted. See, e.g.,General Services Administration, Region 9, 48 FLRA No. 140, 48 FLRA 1348, 1355 (1994) (GSA) and U.S. Department of Justice, Bureau of Prisons, Federal Correctional Institution, Bastrop, Texas, 51 FLRA No. 109, 51 FLRA 1339,1342 (FCI Bastrop). These factors are illustrative, and other factors may be identified and applied as appropriate in a particular case. 


Footnote # 9 - Part II 

F.E. Warren Air Force Base, Cheyenne, Wyoming, 52 FLRA No. 17, 52 FLRA 149, 155-57 (1996) (F.E. Warren) (even if factors did not indicate formality, the purpose of meeting, to inform employees for the first time that they were targets for a RIF and could be laid off and that buyouts were available to them, indicated a formal setting). 


Footnote # 10 - Part II 

United States Immigration and Naturalization Service, United States Border Patrol, El Paso, Texas, 47 FLRA No. 11, 47 FLRA 170, 183 (1993) (meeting to take depositions as part of the discovery process in an MSPB proceeding were formal discussions) and National Treasury Employees Union v. FLRA, 774 F.2d 1181 (D.C. Cir. 1985) (NTEU v. FLRA) (interviews with unit employees conducted by agency representatives in preparation for an MSPB hearing are formal discussions). 


Footnote # 11 - Part II 

Marine Corps Logistics Base, Barstow, California, 45 FLRA No. 133, 45 FLRA 1332, 1335-36 (1992) (in finding no formality, the Authority relied on the factors in GSA as well as the fact that the purpose of the meeting was to comply with and implement an agreement on overtime assignments). 


Footnote # 12 - Part II 

Department of Health and Human Services, Social Security Administration, Baltimore, Maryland and Social Security Administration, Region X, Seattle, Washington, 39 FLRA No. 23, 39 FLRA 298, 311-12 (1991) (an agency is "responsible for the acts and conduct of its agent, regardless of the organizational location of its agent"). 


Footnote # 13 - Part II 

Defense Logistics Agency, Defense Depot Tracy, Tracy, California, 39 FLRA No. 86, 39 FLRA 999, 1013 (1991) (independent contractor providing an employee assistance program was a representative of the agency). 


Footnote # 14 - Part II 

Bureau of Field Operations, Social Security Administration, San Francisco, California, 20 FLRA No. 9, 20 FLRA 80, 83 (1985) (meeting to discuss the temporary reassignment of duties of two employees did not concern a personnel policy or practices or other general condition of employment). 


Footnote # 15 - Part II 

FCI Bastrop, Texas, 51 FLRA at 1344 (quoting FCI, Ray Brook, 29 FLRA at 590). 


Footnote # 16 - Part II 

Id., 51 FLRA at 1344 ("it would be inconsistent with the intent of the Statute to find that the union is not entitled to be involved in the informal stage of the grievance procedure [footnote omitted]"). 


Footnote # 17 - Part II 

Luke Air Force Base, Arizona, 54 FLRA No. 75, 54 FLRA 716, 730 (1998) (formal EEO complaints are grievances for formal discussion purposes),reversed sub nom. Luke Air Force Base, Arizona v. FLRA, 208 F.3d 221 (9th Cir., 1999), cert. denied, 121 S. Ct. 60 (2000). 


Footnote # 18 - Part II 

NTEU v. FLRA, 774 F.2d at 1186 ("Nothing in this definition [of section 7103(a)(9)] restricts a 'grievance' to matters raised through a negotiated procedure."). 


Footnote # 19 - Part II 

U.S. Department of Defense, Defense Logistics Agency, Defense Depot Tracy, Tracy, California, 37 FLRA No. 80, 37 FLRA 952, 960 (1990) ("whether or not the meeting concerned a "personnel policy or practice" when it began, it developed into a discussion concerning a "personnel policy or practice" within the meaning of section 7114(a)(2(A) that concerned a general condition of employment of all warehouse employees."). 


Footnote # 20 - Part II 

INS Rosedale, 55 FLRA No. 170 at 1035 (note 7). 


Footnote # 21 - Part II 

Id. 55 FLRA No. 170, at 1040-42. 


Footnote # 22 - Part II 

Department of the Air Force, Sacramento Air Logistics Center, McClellan Air Force Base, California, 29 FLRA No 53, 29 FLRA 594, 604-07 (1987) ("actual notice" was not sufficient since the employee who received notice was not the designated representative in the matter being discussed). 


Footnote # 23 - Part II 

General Services Administration, Region 9, Los Angeles, California and American Federation of Government Employees, Council 236, 56 FLRA No. 114 (2000) (arbitrator's finding that notice to a local representative was insufficient was upheld). 


Footnote # 24 - Part II 

See U.S. Department of the Army, New Cumberland Army Depot, New Cumberland, Pennsylvania, 38 FLRA No. 61, 38 FLRA 671, 677 (1990); and U.S. Nuclear Regulatory Commission, 21 FLRA No. 96, 21 FlRA 765, 768 (1986) (NRC) (the unions' right to be represented at a formal discussion included the right of the union representatives to "comment, speak, and make statements"). 


Footnote # 25 - Part II 

NTEU I, 774 F.2d at 1188 and United States Immigration and Naturalization Service,United States Border Patrol, El Paso, Texas, 47 FLRA No.11, 47 FLRA 170 (1993) (role of a union during the taking of depositions under the Federal Rules as part of an MSPB proceedings was satisfied by allowing the union to be present, but not to actively participate). 


Footnote # 26 - Part II 

NRC, 21 FLRA at 768. 


Footnote # 27 - Part II 

See "Guidance on Seeking Remedies for Unfair Labor Practices Under the Federal Service Labor-Management Relations Statute" (May 8, 2000). 


Footnote # 28 - Part II 

Of course, an agency may not bypass the exclusive representative on those issues where the agency under the Statute must only deal with the union and not the employees. See Part IV for a discussion of bypasses.

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