19:1141(127)CA - Customs Service, Washington, DC and Customes Service Region VIII Seattle, WA -- 1985 FLRAdec CA
[ v19 p1141 ]
The decision of the Authority follows:
19 FLRA No. 127 UNITED STATES CUSTOMS SERVICE WASHINGTON, D.C. Respondent and UNITED STATES CUSTOMS SERVICE REGION VIII SEATTLE, WASHINGTON Respondent and NATIONAL TREASURY EMPLOYEES UNION Charging Party Case No. 9-CA-20232 DECISION AND ORDER The Administrative Law Judge issued the attached Decision in the above-entitled proceeding, finding that the United States Customs Service, Washington, D.C. and the United States Customs Service, Region VIII, Seattle, Washington (Respondents) had engaged in certain of the unfair labor practices alleged in the complaint, and recommending that Respondents be ordered to cease and desist therefrom and take certain affirmative action. The Judge found that the Respondents had not engaged in another unfair labor practice alleged in the complaint. Thereafter, the Charging Party (NTEU) and the Respondents filed exceptions to the Judge's Decision, and opposition briefs were filed by the Respondents and the General Counsel. 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 Recommended Order, as modified herein. The Judge, among other things, found that there was a violation of section 7116(a)(1) and (8) of the Statute, concluding that there was a formal discussion and that the requirements of section 7114(a)(2)(A) were not met notwithstanding the fact that a union representative was present at the meeting. Subsequent to the Judge's Decision, the Authority issued Veterans Administration, Veterans Administration Medical Center, Muskogee, Oklahoma, 19 FLRA No. 122 (1985), wherein the Authority held that the actual presence of a union representative at a "formal discussion" satisfies the requirement of section 7114(a)(2)(A) that the exclusive representative be given the opportunity to be represented at such a discussion. Accordingly, without passing upon whether the meeting at issue was, in fact, "formal" within the meaning of section 7114(a)(2)(A) of the Statute, the Authority hereby reverses the Judge's conclusion that the Respondents violated section 7116(a)(1) and (8) of the Statute. ORDER IT IS ORDERED that the complaint in Case No. 9-CA-20232 be, and it hereby is, dismissed. Issued, Washington, D.C., August 30, 1985 Henry B. Frazier III, Acting Chairman William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY -------------------- ALJ$ DECISION FOLLOWS -------------------- Case No.: 9-CA-20232 Patricia K. Olson, Esquire For the Respondent Lucinda Bendat, Esquire For the Charging Party Stefanie Arthur, Esquire For the General Counsel, FLRA Before: GARVIN LEE OLIVER Administrative Law Judge DECISION Statement of the Case This decision concerns an unfair labor practice complaint issued by the Regional Director, Region Nine, Federal Labor Relations Authority, San Francisco, California against the United States Customs Service, Washington, D.C. and United States Customs Service, Region VIII, Seattle, Washington, (Respondents), based on charges filed by the National Treasury Employees Union (Charging Party or Union). The complaint alleged that Respondents violated sections 7116(a)(1), (5) and (8) of the Federal Service Labor-Management Relations Statute, 5 U.S.C. 7101 et seq. (the Statute). The complaint charged, in substance, that Respondents interfered with an employee's right to file a grievance when Chief Inspector Barney Martin conducted a meeting with bargaining unit employee Walter Lisowski during which Martin expressed his anger that Lisowski had filed a grievance and repeatedly told Lisowski to reconsider pursuing the grievance. The complaint also alleged that the Martin-Lisowski meeting constituted a formal discussion within the meaning of section 7114(a)(2)(A), and that Respondents' failure to provide the Union with advance notice of the meeting violated the Statute. Respondent's answer denied any violation of the Statute. Respondents asserted that the meeting concerned an agreement made by Lisowski and the Union and did not concern the substance or resolution of any grievance; that the Union was afforded an opportunity to be represented, and in fact was represented, at the meeting; that supervisor Barney Martin's comments at the meeting were limited to reminding Lisowski of an agreement he had made and requesting Lisowski to reconsider his actions in light of the agreement; that the comments made by Martin did not contain any threat of reprisal or force or promise of benefit, nor were they made under coercive conditions; and that the meeting was consistent with the requirement of an effective and efficient Government. A hearing was held in this matter at Seattle, Washington. The Respondents, Charging Party, and the General Counsel were represented by counsel and afforded full opportunity to be heard, adduce relevant evidence, examine and cross-examine witnesses and file post-hearing briefs. The Respondents and General Counsel filed briefs, and the proposed findings have been adopted to the extent found supported by the record as a whole. Based on the entire record, including my observation of the witnesses and their demeanor, I make the following findings of fact, conclusions of law, and recommendations. Findings of Fact At all times material herein, the Union has been certified as the exclusive representative of an appropriate unit of employees of Respondent U.S. Customs Service, Washington, D.C., including employees at Respondent U.S. Customs Service, Region VIII, Seattle (Region VIII). At all times material herein, Bernard Martin has been the Chief, Inspection Branch, Port of Seattle, Seattle District, and an agent of Respondent. By letter dated January 4, 1982, Walter Lisowski, a Customs inspector at SEATAC airport, Seattle district, Region VIII, was informed of a proposal to suspend him for thirty days predicated upon two alleged charges: unofficial use of a government vehicle in violation of 31 U.S.C. 638 and violation of airport security regulations. 31 U.S.C. 638 provides that any officer or employee of the government who willfully uses a government vehicle for other than official purposes shall be suspended from duty for not less than one month. The Union represented Lisowski in responding to the proposed suspension and in negotiating a settlement. During the course of the negotiations concerning the disciplinary proceedings, Lisowski voluntarily admitted to the facts set forth in the notice of the proposed suspension. At one point in the negotiations, the Union proposed a settlement involving a suspension of only three days. However, this was rejected by Acting District Director Raymond Mintz as not being a satisfactory penalty. Management recognized that the mandatory one month suspension would be rather harsh under the circumstances and that a lesser period would be more appropriate. However, Customs' management was faced with the problem of deviating from a statutory mandate if a lesser penalty were imposed. Therefore, a settlement was negotiated which involved an agreement by Lisowski and the Union that they would not use the case as a precedent in future cases and would not grieve the action, provided the discipline were reduced to a five day suspension. The terms of the settlement were finalized at a meeting between Inspector Lisowski, Union Chapter President Thomas Geary, and Acting District Director Mintz on February 26, 1982. This included a discussion as to the effective dates of the suspension. Union president Geary and Mr. Lisowski asked that the suspension be made effective March 6-10 (Saturday through Wednesday) which would straddle two pay periods and minimize the impact of Lisowski's pay loss. Mintz agreed to make the suspension effective in such a way that Lisowski would lose only four days of pay (Saturday, Monday, Tuesday and Wednesday), Sunday being Lisowski's day off. During the February 26 meeting, Lisowski and Geary signed a document which provided as follows: In the event that the proposed suspension of Mr. Walter T. Lisowski, Customs Inspector, initiated by letter dated January 4, 1982, is reduced from thirty (30) to five (5) days, NTEU will not grieve the decision nor invoke arbitration; nor will this case be raised as a precedent issued in any future cases. As a result of the meeting and agreement, Mintz issued a letter dismissing the allegation of misuse of a government vehicle and reducing the suspension to five days. The dates of the suspension were set during the period of March 6-10 in order that Lisowski's loss of pay would be spread over two pay periods. One week prior to the meeting with Mintz, Lisowski had exchanged his day off during the week of March 7 with Inspector Doctulero. He had been scheduled to be off on Friday of that week, but had, at Doctulero's request, exchanged his Friday off for her Tuesday off. The exchange of days off, or "trade day," had been made through proper channels, in writing, and approved. After the meeting with Mintz and the final decision rendered on the dates of his suspension, Lisowski advised his supervisor of the decision and claimed that, in view of the approved trade, he should only be charged with three days of lost pay during that period instead of the four days to be charged under the decision. Thereupon, the supervisor rescinded the trade day, because it did not fall within the period of the suspension ordered by the Acting District Director. On March 22, 1982 Lisowski and the Union filed a grievance. The "specific nature of the employment condition in dispute" was stated to be the "District Director's letter of suspension." The "statement of the circumstances giving rise to the grievance" recited the facts relating to the trade day and that this day fell during the time of the suspension. The "remedy requested" was "that the original trade be approved and that I be reimbursed for one day's pay during suspension period." The grievance was filed with Lisowski's immediate supervisor, Charles Day. On March 23, when the above grievance came to the attention of Chief Inspector Martin, Lisowski's second-level supervisor, Martin became concerned that Lisowski, by the grievance, was reneging on the terms of the settlement agreement, which, in Martin's view, included an agreement not to grieve the actual loss of four days pay. Martin was also concerned that Lisowski had mislead the District Director, at the February 26 meeting, as to his days off. Martin decided to talk to Lisowski about these concerns. After being advised by labor relations personnel that his plan to talk to Lisowski was appropriate, Martin contacted Lisowski's supervisor and requested that he have Lisowski come to Martin's office. Lisowski was approached by supervisor Day while he was working at the counter at SEATAC airport. Day instructed Lisowski that he was to meet that afternoon with Chief Inspector Martin in his office downtown in the Federal office building. He said that Martin was very upset. Lisowski contacted Union steward Mike Milne and asked him to go downtown with him as his Union representative. No one in management contacted Milne, who was the designated steward at the airport, to advise him of the meeting with Martin. The meeting commenced at approximately 2:00 p.m. in the office of the Director of Inspection and Control. Present were Chief Inspector Martin, Union representative Milne, and Inspector Lisowski. Martin began the meeting by stating that he was "upset and dissatisfied that Lisowski had filed a grievance of this nature." When Milne asked at which step of the grievance procedure the meeting was being held, Martin stated that they were not meeting at any step in the grievance procedure; that he was "conducting an informal discussion to let Walt think about the consequences of filing this grievance." Martin stated that he was concerned about the fact that Lisowski had sat in on the negotiations with Mr. Mintz while knowing all the time about the day off problem. He implied that Lisowski had purposely deceived Mintz during the suspension discussions by failing to tell him what his correct days off were. He went on to say that it upset him, and he couldn't understand why Lisowski would file such a grievance after having agreed to the suspension. Martin stated that he had spoken with Mr. Mintz, and the whole principle of the suspension was that Lisowski would have four days off without pay. Lisowski replied that the number of days off without pay had not been discussed. Martin asked Lisowski whether he had read the law on misuse of government vehicles. He told Lisowski that he had read the law, and that Lisowski was "damn lucky" that he had not received "30 days plus." Martin reiterated that he was "quite beside himself," "dumbfounded and amazed" that Lisowski would file a grievance after the fact. Martin asserted that Mintz had bent over backwards to accommodate Lisowski, even permitting the suspension to fall during two separate pay periods to ease the financial impact. When Lisowski replied that, in fact, the money had not been taken out of two paychecks as agreed, Martin picked up the telephone and called Lisowski's supervisor, Charles Day, at SEATAC. Martin asked Day if the timekeeper had the suspension period correct on the time cards. Upon receiving an answer, Martin hung up the phone and exclaimed "Bull," implying that Lisowski was wrong about the time cards. Milne then advised Martin that he had personal knowledge that the timekeeper had not been notified since he and the timekeeper had discussed the suspension period. Martin concluded the meeting by stating that he did not know if the grievance had been filed in a timely manner; that if it were, he would assign it a number and proceed, but that he wanted Lisowski to think very carefully about the consequences of filing the grievance; to "take a reading" of the situation and reconsider just how badly he wanted to file the grievance. Martin told Lisowski that if he did continue to pursue the grievance, he, Martin, would "fight (him) all the way on it." Martin was tense, visibly upset, loud, and angry during the meeting. The meeting lasted approximately 10 minutes. Following the March 23 discussion, Lisowski and the Union pursued the grievance through the three steps of the negotiated grievance procedure, and the Union has invoked arbitration. Discussion and Conclusions Alleged Interference With Grievance The right to file and process grievances under a contractual grievance procedure falls within the ambit of section 7102 of the Statute which provides that employees have "the right to form, join, or assist any labor organization . . . freely and without fear of penalty or reprisal." Whether the grievance has merit, or is grievable under the negotiated procedure, is beside the point. An employee has the absolute right of free access to the grievance procedure to present his contention. United States Department of Treasury, Bureau of Alcohol, Tobacco and Firearms, Chicago, Illinois, 3 FLRA No. 116 (1980). It is an unfair labor practice under section 7116(a)(1) of the Statute for an agency "to interfere with, restrain, or coerce any employee in the exercise by the employee" of his right to file and process a grievance. U.S. Department of the Navy, Portsmouth Naval Shipyard, 7 FLRA No. 129 (1982); United States Department of the Treasury, Supra. The standard by which one may determine interference, restraint, or coercion is not the subjective perceptions of the employee, nor is it the intent of the employer. Rather, the test is whether, under the circumstances of the case, the employer's conduct may reasonably tend to coerce or intimidate the employee, or, in the case of a statement, whether the employee could reasonably have drawn a coercive inference from the statement. Federal Mediation and Conciliation Service, 9 FLRA No. 31 (1982); Army and Air Force Exchange Service, Ft. Carson, Colorado, 9 FLRA No. 69 (1982); Department of the Treasury, Internal Revenue Service, Louisville District, 11 FLRA No. 64 (1983). It is concluded from all the circumstances that a reasonable employee would interpret Chief Inspector Martin's statements at the meeting as statements of agency management and not merely expressions of his own personal views, as Respondents contend. Lisowski was called away from his work place at the airport and ordered to appear for a meeting in the downtown office of his second-line supervisor, Chief Inspector Martin. Martin was clearly speaking in his supervisory capacity. In fact, he had received prior authorization to speak to Lisowski about the matter. Compare Army and Air Force Exchange Service (AAFES), Ft. Carson, Colorado, supra. The essence of Martin's remarks was that Lisowski's grievance, requesting that he be reimbursed for one day's pay during a suspension period, violated an agreement that the employee and Union had made in settlement of a disciplinary suspension; that Lisowski, during the settlement negotiations, had mislead the Acting District Director as to his days off during the week of the agreed suspension; that he should reconsider pursuing the grievance; and that, if he did pursue the grievance, Martin would fight him all the way on it. The case of Consumer Product Safety Commission, 10 FLRA No. 72 (1982) is directly in point. That case, like the present one, involved the negotiated settlement of a discipline matter and subsequent alleged interference with statutory rights. In Consumer Product, one of the terms of the settlement was an agreement by the employee not to institute any administrative actions, including unfair labor practice charges, concerning the incidents in question. Some time after the agreement was made and the employer had implemented its portion, the employee, among other things, filed an unfair labor practice charge over the incident. A management official of the employer subsequently sent a memorandum to the employee stating that the employee had violated the terms of the agreement, that he expected the employee to withdraw the unfair labor practice charge, and that, if the employee failed to do so, the employer would take whatever legal steps were necessary to enforce the agreement. The Administrative Law Judge found that, because the memorandum sought only to enforce a commitment made by the employee in settlement of the discipline matter and did not otherwise attempt to proscribe his utilization of the Act's protective processes as to other disputes, it was non-coercive in nature and, therefore, the employer had not violated the Statute. The Authority adopted the Judge's findings and conclusions. The Authority noted particularly that the memorandum made "no mention of precluding any challenge to the validity of that agreement" and sought only to enforce the settlement agreement. The instant case involves a face-to-face meeting and not a more impersonal memorandum. However, as in the Consumer Product case, Martin's remarks were not directed in a broad, non-specific fashion at the employee's right to engage in protected activities, but only at the circumstances surrounding a particular settlement agreement. Compare Department of the Treasury, Internal Revenue Service, Louisville District, supra. The settlement, in management's view, was that management would reduce a proposed 30-day suspension to five days with the understanding that Lisowski would lose only four day's pay and would not grieve the decision. Whether or not the settlement agreement bars, or otherwise affects, the grievance is an issue for resolution in the grievance/arbitration proceeding, and it is not appropriate for disposition here. However, under all the circumstances, it was at least reasonable for Martin to conclude that the filing of the grievance was a repudiation, or attempt at circumvention, of the negotiated agreement, and, under Consumer Product, it was appropriate for him to bring management's position to the employee's and the Union's attention. Martin's closing remarks, that Lisowski should "think very carefully, about the consequences of filing the grievance, take a reading of the situation, and reconsider just how badly he wanted to file the grievance," were obviously designed to have Lisowski consider and agree to management's view; namely, that in order to honor the agreement he should withdraw the grievance. Under the circumstances, the remarks were no different in effect than the memorandum in Consumer Product which specifically stated that it expected the employee to honor the agreement by withdrawing the various appeals. Martin's comment that if Lisowski did pursue the grievance, he would "fight him all the way on it" simply meant that Respondents would assert every legal defense and exhaust every appeal. It was also similar to the remarks in Consumer Product that, if the various requests, appeals, and unfair labor practice charge were not withdrawn, the employer would take whatever legal steps are necessary to enforce the Agreement." The Union's presence at the meeting also served to reduce any coercive effect of Martin's remarks. The employee's personal Union representative was present at the meeting and could explain the overall significance of Martin's remarks. As found infra, this representative also had the right to represent the Union's position in this formal discussion of the alleged conflict between the grievance and the prior settlement agreement. Under all the circumstances, it is concluded that Respondents' conduct, through Chief Inspector Martin, did not constitute interference, restraint, or coercion under section 7116(a)(1) of the Act, as alleged. Alleged Formal Discussion The General Counsel contends that Respondents' failure to have provided the Union with notice of the formal discussion which Martin conducted on March 23, concerning Lisowski's grievance, constituted a failure to comply with the provisions of section 7114(a)(2)(A) /1/ of the Statute and an unfair labor practice in violation of section 7116(a)(1), (5) and (8) of the Statute. There is no contention that the Union would have designated a representative other than Mr. Milne had it received proper advance notice. Respondents defend on the basis that Martin made it clear that the meeting was only an informal discussion; there was no discussion of the substance or resolution of the grievance; and, in any event, the Union was afforded the opportunity to be represented and, in such circumstances, there can be no violation of the Statute resulting from the employer's failure to give notice. Under all the circumstances, it is concluded that the meeting on March 23 between Chief Inspector Martin, a representative of the agency, and employee Lisowski and his Union representative was a formal discussion within the meaning of section 7114(a)(2)(A). The meeting had many of the essential indicia of formality set out by the Authority in Department of Health and Human Services, Social Security Administration, Bureau of Field Operations, San Francisco, California, 10 FLRA No. 24 (1982). The meeting was conducted by Chief Inspector Martin, Lisowski's second line supervisor; it was held in Martin's office at the Federal office building in downtown Seattle, away from Lisowski workplace at SEATAC airport; and Lisowski's attendance was mandatory. The meeting definitely "concerned" the grievance which Lisowski had filed the previous day. The substance of the discussion essentially involved the alleged conflict between the grievance and the previous settlement agreement. The record reflects that Respondents did not notify the Union of the formal discussion. However, an appropriate Union representative, Mr. Milne, was notified and brought to the meeting by the employee as the employee's representative and was permitted by management to attend, apparently without question. Respondent contends that the Union was, therefore, "given the opportunity to be represented" at the meeting pursuant to section 7114(a)(2)(A), and that there can be no violation of the Statute resulting from the employer's failure to give specific advance notice under U.S. Air Force v. Federal Labor Relations Authority, 681 F.2d 466 (6th Cir., 1982). The Authority has held that the fact that a union steward is informed by an employee of a formal discussion concerning a grievance, and attends the meeting as a union's representative, does not fulfill the obligation of the agency to afford the exclusive representative the opportunity to be represented. Internal Revenue Service, Fresno Service Center, Fresno, California, 7 FLRA No. 54 (1981). Moreover, the facts in U.S. Air Force v. Federal Labor Relations Authority, supra, relied upon by Respondents, are quite different. That case did not involve a violation of section 7114(a)(2)(A), the formal discussion provision. The issue involved whether a union had received appropriate advance notice of planned changes in conditions of employment so that it could have requested bargaining on such changes. A union steward had attended a general staff meeting at which an intention to reorganize the office had been announced, but he had not received any notice of the reorganization as a union representative. The Authority found a violation of the agency's obligation to consult in good faith, as required by sections 7116(a)(1) and (5). The court of appeals denied enforcement, stating, in part, "We fail to see how Price, in his role as a human being, could not receive actual notice as an employee and formal notice as a union steward by his singular attendance at the reorganization meeting." Therefore, the union had notice, could have requested bargaining, and there was no violation. In the instant case, the meeting at issue was not designed to constitute some form of notice to the Union of a bargaining opportunity. The issue is not whether the Union received notice at the meeting, but whether it received notice of the meeting. The whole purpose of the formal discussion provision is to provide the Union an opportunity to be represented at a formal discussion. It was a fortuity that the Union representative was asked to attend the meeting by the employee as the employee's representative. While, under the principle of the U.S. Air Force decision, the union then had the opportunity to participate in the meeting by the presence of an appropriate representative, still Respondents had made no effort to give the Union appropriate notice in order that it might fulfill the role contemplated by section 7114(a)(2)(A). Therefore, I conclude that Respondents did violate sections 7116(a)(1) and (8) of the Statute, /2/ as alleged, and that a cease and desist order would effectuate the purposes and policies of the Statute. Based on the foregoing findings and conclusions, it is recommended that the Authority issue the following Order: ORDER Pursuant to section 2423.29 of the Rules and Regulations of the Federal Labor Relations Authority and section 7118 of the Statute, the Authority hereby orders that the United States Customs Service, Washington, D.C. and United States Customs Service, Region VII, Seattle, Washington shall: 1. Cease and desist from: (a) Failing to give the National Treasury Employees Union appropriate prior notification of, and opportunity to be represented at, a formal discussion between one or more representatives of the agency and one or more employees in the unit or their representatives concerning a grievance. (b) In any like or related manner, interfering with, restraining, or coercing 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 National Treasury Employees Union appropriate prior notification of, and opportunity to be represented at, a formal discussion between one or more representatives of the agency and one or more employees in the unit or their representatives concerning a grievance. (b) Post at its facilities in Seattle, Washington copies of the attached Notice marked "Appendix" on forms to be furnished by the Authority. Upon receipt of such forms, they shall be signed by the District Director and shall be posted and maintained by him for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. The District Director shall take reasonable steps to insure that such notices are not altered, defaced, or covered by any other material. (c) Pursuant to 5 C.F.R.section 2423.30 notify the Regional Director, Region Nine, Federal Labor Relations Authority, San Francisco, California, in writing, within 30 days from the date of this order, as to what steps have been taken to comply herewith. GARVIN LEE OLIVER Administrative Law Judge Dated: March 11, 1983 Washington, D.C. APPENDIX 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 STATUTE WE HEREBY NOTIFY OUR EMPLOYEES THAT: WE WILL NOT fail to give National Treasury Employees Union appropriate prior notification of, and opportunity to be represented at, a formal discussion between one or more representatives of the agency and one or more employees in the unit or their representatives concerning a grievance. WE WILL NOT in any like or related manner, interfere with, restrain, or coerce employees in the exercise of rights assured by the Federal Service Labor-Management Relations Statute. WE WILL give National Treasury Employees Union appropriate prior notification of, and opportunity to be represented at, a formal discussion between one or more representatives of the agency and one or more employees in the unit or their representatives concerning a grievance. (Agency or Activity) Dated: . . . By: (Signature) 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 any of its provisions, they may communicate directly with the Regional Director of the Federal Labor Relations Authority, Region Nine, whose address is: 530 Bush Street, Room 542, San Francisco, California, 94108 and whose telephone number is: (415) 556-8106. --------------- FOOTNOTES$ --------------- /1/ 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 practice or other general condition of employment(.) /2/ Based on the above outcome, which fully remedies the violation found, it is unnecessary to decide whether such conduct also violated section 7116(a)(5) of the Statute. Office of Program Operations, Field Operations, Social Security Administration, San Francisco Region, 10 FLRA No. 36 (1982).