18:0042(7)CA - HHS, SSA and AFGE -- 1985 FLRAdec CA



[ v18 p42 ]
18:0042(7)CA
The decision of the Authority follows:


 18 FLRA No. 7
 
 DEPARTMENT OF HEALTH AND HUMAN 
 SERVICES, SOCIAL SECURITY ADMINISTRATION 
 Respondent
 
 and 
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO 
 Charging Party
 
                                            Case No. 3-CA-2816
 
                            DECISION AND ORDER
 
    This matter is before the Authority pursuant to the Regional
 Director's "Order Transferring Case to the 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 and the contentions of the parties, /1/ the
 Authority finds:
 
    The complaint alleges that the Respondent violated section
 7116(a)(1), (5) and (8) of the Federal Service Labor-Management
 Relations Statute (the Statute) by conducting formal discussions with
 unit employees within the meaning of section 7114(a)(2)(A) of the
 Statute /2/ without first notifying the Charging Party (the Union) and
 affording it an opportunity to be present, and by such conduct also
 bypassed the exclusive representative in violation of the Statute.
 
    The record indicates that on or about August 12, 1981, a meeting was
 held between an agent of the Respondent and two Union officials
 concerning a pending grievance which had been filed by a steward on
 behalf of employees at the Respondent's Falls Church, Virginia, Branch
 Office.  The subject of the grievance concerned the conduct of one of
 the Respondent's supervisors and how he related to the employees under
 his supervision.  Present at the meeting were the Acting District
 Manager of the Alexandria, Virginia, District Office, the Union
 president, and the steward who had filed the grievance.  Thus, the Union
 was present during this discussion of the grievance.  During this
 meeting, the Acting District Manager indicated that she would thoroughly
 investigate the matter before rendering a decision, and gave the Union a
 memo indicating that she would provide a written reply to the grievance
 within five days.  On or about August 17, 1981, the Acting District
 Manager met individually with about ten bargaining unit employees in the
 office of the Branch Manager at the Falls Church location and examined
 them concerning the pending grievance.  These latter meetings are those
 at issue in this case.
 
    Section 7114 of the Statute outlines the representation rights and
 duties of labor organizations which have been accorded exclusive rights
 and duties of labor organizations which have been accorded exclusive
 recognition.  Among them are the right in section 7114(a)(2)(A) to be
 represented at formal discussions concerning any grievance or any
 personnel policy or practice or other general conditions of employment;
 and in section 7114(a)(2)(B) /3/ to be represented at any examination of
 an employee in connection with an investigation when the employee
 reasonably believes that the examination may result in disciplinary
 action and the employee requests representation.
 
    The question here presented is whether a union has the right under
 section 7114(a)(2)(A) of the Statute to be represented at a meeting,
 such as those here at issue, between a management representative and an
 employee or employees when management is conducting an investigation by
 examining such employees for the purpose of gathering facts.  In order
 for the Authority to address this question, it is necessary to analyze
 the constitution of section 7114(a)(2) of the Statute and its
 legislative history.
 
    Section 7114(a)(2)(A) and section 7114(a)(2)(B) provide respectively
 that "(a)n exclusive representative . . . shall be given the opportunity
 to be represented at-- (A) any formal discussion . . . or (B) any
 examination . . . in connection with an investigation . . . ." The use
 of the conjunction "or" to separate these sections indicates a
 Congressional intent that the right to union representation at formal
 discussions in section 7114(a)(2)(A) be separate from the right to union
 representation at an examination contained in section 7114(a)(2)(B).
 That these rights were also intended to apply to different situations is
 evident from the legislative history of section 7114.  Thus, the rights
 in section 7114(a)(2)(A) were intended to apply to union representation
 at certain formal discussions between representatives of an agency and
 unit employees concerning grievances, personnel policies or practices or
 other general conditions of employment.  /4/ However, such rights were
 not intended to apply to meetings which are "highly personal, informal
 meetings." /5/
 
    The legislative history of section 7114(a)(2)(B), on the other hand,
 indicates that Congress intended that when an employee is subjected to
 an examination in connection with an investigation and that employee has
 a reasonable belief that disciplinary action may result, there is a
 right to union representation, upon request.  /6/ Thus, unlike the
 situations covered by section 7114(a)(2)(A) which may give rise to the
 right of union representation, i.e., formal discussions between
 management and an employee or employees concerning grievances, personnel
 policies, practices or other general conditions of employment, /7/ the
 situation giving rise to the right of union representation under section
 7114(a)(2)(B) is the existence of an examination of a unit employee in
 connection with an investigation.  However, such a right will only
 attach where the employee who is being examined reasonably believes that
 the examination may result in disciplinary action and the employee
 requests representation.  /8/ The requirement that the employee request
 representation further highlights the distinction between the right to
 representation under section 7114(a)(2)(A) and section 7114(a)(2)(B),
 respectively.  That is, the right to union representation under section
 7114(a)(2)(A) is not contingent upon an employee's request for such
 representation at formal discussions although it is a requirement for
 representation at examinations in connection with investigations under
 section 7114(a)(2)(B).  Had Congress not intended to separate the rights
 in these sections, then a union could be present at an examination in
 connection with an investigation (which otherwise might fall within the
 meaning of "formal discussion" in section 7114(a)(2)(A)) without being
 so requested.  Clearly, by the very language of section 7114(a)(2)(B),
 this is not what Congress intended.
 
    The question here presented is whether a union has the right to be
 represented at a meeting with an employee or employees when management
 is examining such employee(s) in connection with an investigation
 intended to gather facts (here for the purpose of rendering a decision
 in a grievance).  Such an examination is to be contrasted with formal
 discussions which may be held with grievants during the processing of a
 grievance under the steps of a negotiated grievance procedure.  Clearly
 such discussions, where they are formal in nature, /9/ fall within the
 ambit of section 7114(a)(2)(A).  /10/ Here, the meetings between the
 management representative and the employees were not formal discussions
 under the steps of the grievance procedure, but instead were
 examinations of unit employees in connection with an investigation by
 management for the purpose of making a decision on the grievance.  The
 Authority therefore finds that any union entitlement to be represented
 at such a meeting is attendant upon the requirements of section
 7114(a)(2)(B).  This conclusion is compelled by the doctrine of inclusio
 unius est exclusio alterius.  /11/ Where the literal language of section
 7114(a)(2)(B) clearly applies to situations involving examinations of
 employees in connection with investigations, a determination as to
 whether a union has the right to be represented at the type of
 examination now before the Authority must perforce be decided under
 section 7114(a)(2)(B) and consideration under section 7114(a)(2)(B) is
 inapposite.
 
    In the instant case, the employees were examined in connection with
 an investigation.  This being so, there occurred no "formal discussion"
 within the meaning of section 7114(a)(2)(A).  It follows that the
 Respondent's failure to afford the Union an opportunity to be
 represented thereat was not inconsistent with section 7114(a)(2)(A).
 While the complaint herein did not allege a violation of the Statute
 based on a failure to comply with the provisions of section
 7114(a)(2)(B), the Authority notes there is no evidence that the
 employees who were examined reasonably believed that the examination
 might result in disciplinary action against them or that they had
 requested representation.  In the absence of any such showing, the
 Authority concludes that the failure to afford the Union an opportunity
 to be represented at the examinations could not constitute a violation
 of the Statute.  /12/
 
    The Authority further finds that the examinations of unit employees
 did not constitute an unlawful bypass of the Union, as alleged.  In this
 connection, the General Counsel has failed to establish that the
 Respondent attempted to negotiate or deal directly with unit employees
 concerning their conditions of employment or in any manner sought to
 undermine the status of the Union as the employees' exclusive
 representative.  /13/
 
                                   ORDER
 
    IT IS ORDERED that the complaint in Case No. 3-CA-2816 be, and it
 hereby is, dismissed.  
 
 Issued, Washington, D.C. May 16, 1985
 
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       William J. McGinnis, Jr., Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ The Respondent's brief was not timely filed and therefore has not
 been considered by the Authority.
 
 
    /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 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(.)
 
 
    /3/ Section 7114(a)(2)(B) provides as follows:
 
          (a)(2) An exclusive representative of an appropriate unit in an
       agency shall be given the opportunity to be represented at--
 
                                  * * * *
 
          (B) any examination of an employee in the unit by a
       representative of the agency in connection with an investigation
       if--
 
          (i) the employee reasonably believes that the examination may
       result in disciplinary action against the employee;  and
 
          (ii) the employee requests representation.
 
 
    /4/ See generally Bureau of Government Financial Operations,
 Headquarters, 15 FLRA No. 87 (1984).
 
 
    /5/ The Authority notes particularly the following statement of
 Representative Clay of Missouri concerning the addition of the word
 "formal" to that portion of the "Udall substitute" which was ultimately
 enacted as section 7114(a)(2)(A) of the Statute:
 
          (T)he word "formal" was inserted before "discussions" 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 counseling sessions . . . .
 
 124 Cong.Rec. 29187, 29188 (1978).
 
 
    /6/ See H.R. Rep. No. 95-1717, 95th Cong. 2d Sess. 40 (1978),
 reprinted in Legislative History of the Federal Service Labor-Management
 Relations Statute, Title VII of the Civil Service Reform Act of 1978, at
 824 (1979), wherein the conferees indicated that such a right is to be
 accorded labor organizations "at any examination of an employee by a
 representative of the agency in connection with an investigation if the
 employee reasonable believes that the examination may result in
 disciplinary action against the employee."
 
 
    /7/ See Bureau of Government Financial Operations, supra n.4.
 
 
    /8/ See, e.g., Department of the Navy, Norfolk Naval Base, Norfolk,
 Virginia, 14 FLRA 731 (1984).
 
 
    /9/ See, e.g., Department of Health and Human Services, Social
 Security Administration, Bureau of Field Operations, San Francisco,
 California, 10 FLRA 115 (1982).
 
 
    /10/ See Bureau of Government Financial Operations, supra n.4.
 
 
    /11/ Literally, "The inclusion of one is the exclusion of another."
 See Black's Law Dictionary 906 (rev. 4th ed. 1968).  For purposes here,
 where a provision of the Statute includes certain matters within its
 coverage, then by implication, all other matters are not so covered.
 
 
    /12/ See Internal Revenue Service, Washington, D.C., and Internal
 Revenue Service, Hartford District Office, 4 FLRA 237 (1980), aff'd sub
 nom. Internal Revenue Service v. FLRA, 671 F.2d 560 (D.C. Cir. 1982).
 
 
    /13/ See Defense Logistics Agency, Defense Depot Tracy, Tracy,
 California, 14 FLRA 475 (1984);  Internal Revenue Service (District,
 Region, National Office Unit), 11 FLRA 69 (1983), aff'd sub nom.
 National Treasury Employees Union v. Federal Labor Relations Authority,
 725 F.2d 126 (D.C. Cir. 1984);  and Kaise