32:0465(69)CA - - Labor, Office of the Assistant Secretary for Administration and Management, Chicago, IL and AFGE Local 648 - - 1988 FLRAdec CA - - v32 p465

32 FLRA No. 69

UNITED STATES OF AMERICA
BEFORE THE
FEDERAL LABOR RELATIONS AUTHORITY
WASHINGTON, D.C.

 

U.S. DEPARTMENT OF LABOR
OFFICE OF THE ASSISTANT
SECRETARY FOR ADMINISTRATION
AND MANAGEMENT, CHICAGO, ILLINOIS
Respondent

and 

AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES
LOCAL 648, AFL-CIO
Charging Party

Case No. 5-CA-70379

DECISION AND ORDER

I. Statement of the Case

This unfair labor practice case is before the Authority under section 2429.1(a) of our Rules and Regulations based on a stipulation of facts entered into by the Respondent, the Charging Party, and the General Counsel. The General Counsel and the Respondent have filed briefs.

The complaint alleges that the Respondent violated section 7116(a)(1) and (8) of the Federal Service Labor-Management Relations Statute (the Statute) by conducting a formal discussion with a bargaining unit employee and his private attorney without notifying the Union of the meeting and affording the Union an opportunity to be represented.

For the reasons discussed below, we conclude that the Respondent violated the Statute as alleged in the complaint.

II. Facts

The National Council of Field Labor Locals, American Federation of Government Employees, AFL-CIO is the exclusive representative of all employees of the U.S. Department of Labor in field duty stations located outside the Washington, D.C. metropolitan area, including the employees of the Respondent U.S. Department of Labor, Office of the Assistant Secretary for Administration and Management, Chicago, Illinois. The Charging Party, American Federation of Government Employees, Local 648 (the Union), is the authorized agent of the National Council with respect to the employees of the Respondent.

Mr. Roy Ortner, a bargaining unit employee, was suspended for 30 days effective June 7, 1987. He appealed his suspension to the Merit Systems Protection Board (MSPB) and designated Ms. Joan Eagle, a private attorney, to serve as his representative during the MSPB proceedings. Ms. Eagle was not a representative of the Union. On July 24, 1987, Mr. Ortner and the Respondent entered into a Stipulation of Settlement and Dismissal of Appeal. The Stipulation and Dismissal was filed with MSPB on July 28, 1987, in resolution of Mr. Ortner's appeal.

Paragraph 4 of the Stipulation and Dismissal provided, as follows:

Within two weeks of the execution of this Stipulation of Settlement and Dismissal Mr. Ortner and his representative, Ms. Joan Eagle, shall meet with Mr. Harold W. Penn, Support Services Supervisor for the Agency, Ms. Donna Garcia, appellant's supervisor and Ms. Janet Graney, the Agency's Representative, at which time Mr. Ortner shall again be advised as to the nature and scope of his duties with the Agency consistent with the provisions of his job description. A memorandum to Mr. Ortner shall be issued by the Agency following this meeting confirming the substance of this meeting.

The parties waived any right to challenge the Stipulation and Dismissal other than an action to enforce its terms and conditions.

During the week of July 27, 1987, the Respondent notified Mr. Ortner and Ms. Eagle that the meeting provided for in the Stipulation and Dismissal was scheduled for August 6, 1987. The Respondent did not provide the Union with advance notice of or an opportunity to be represented at the meeting on August 6. Moreover, the Respondent denied the Union's request to be present at the meeting. On August 6, the meeting was held in the office of Mr. Penn. The representatives of the Respondent (Mr. Penn, Ms. Garcia, and Ms. Graney), Mr. Ortner, and Ms. Eagle attended the meeting. The purpose of the meeting was to advise Mr. Ortner as to the nature and scope of his duties consistent with the provisions of his job description.

The meeting lasted for approximately an hour. During the first half of the meeting, Mr. Penn read aloud Mr. Ortner's position description and performance elements and standards. During the second half of the meeting, Mr. Penn read from a document a list of activities in which Mr. Ortner was not authorized to be involved absent official instructions to the contrary. Mr. Ortner was advised that he was not authorized to (1) shift through paper for recycling or go to the recycling center, (2) deliver or pick-up mail from any source, (3) remain on agency premises after his work hours, (4) leave his work station without his supervisor's permission except for short periods of time to attend to personal needs, (5) enter any other premises of the agency, (6) discuss property matters with other Federal agencies or members of the public during work hours, (7) review the mail or material in or on the desks of other employees, or (8) use agency equipment for personal use. In addition, Mr. Penn asked Mr. Ortner what he would do in hypothetical situations.

Mr. Penn also discussed with Mr. Ortner whether Mr. Ortner could remain in the Union's office after work hours and Mr. Ortner's use of official time to conduct labor-management business. Mr. Ortner was advised that official time must be requested and approved in advance.

On August 12, 1987, Mr. Ortner received a memorandum which summarized the August 6, 1987 meeting.

III. Positions of the Parties

A. The General Counsel

The General Counsel contends that the August 6, 1987 meeting constituted a formal discussion within the meaning of section 7114(a)(2)(A) of the Statute. The General Counsel notes the Respondent's admission that it did not provide the Union with advance notice of or an opportunity to be represented at the meeting and that it specifically denied the Union's request to be represented at the meeting. Consequently, the General Counsel maintains that the Respondent violated section 7116(a)(1) and (8), as alleged in the complaint. As a remedy, the General Counsel requests that the Respondent be ordered to cease and desist from engaging in such conduct and that the meeting be re-held with the Union's designated representative present if the Union so requests.

B. The Respondent

The Respondent contends that the August 6 meeting was not a formal discussion under section 7114(a)(2)(A). The Respondent does not dispute that the meeting constituted a "discussion" or that the meeting involved "one or more representatives of the agency and one or more employees in the unit or their representatives." However, the Respondent argues that the meeting was not "formal" and that the meeting did not concern a grievance or a personnel policy or practice or other general condition of employment.

The Respondent argues that the meeting was not "formal" because it was initiated by the employee and his representative. The Respondent also argues that the meeting did not constitute a formal discussion because the meeting was a highly personal counseling session.

The Respondent maintains that the pivotal issue is whether the meeting concerned a "grievance." The Respondent notes that the Authority ruled in U.S. Department of Justice, Bureau of Prisons, Federal Correctional Institution (Ray Brook, New York), 29 FLRA 584 (1987), (FCI (Ray Brook)), petition for review filed sub nom. AFGE Local 3882 v. FLRA, No. 87-1723 (D.C. Cir. Nov. 27, 1987), that the term "grievance" should be broadly construed based on the definition of section 7103(a)(9) and, specifically, can encompass a statutory appeal. The Respondent maintains that the meeting did not concern a grievance because at the time of the meeting, Mr. Ortner's statutory appeal had been resolved and dismissed with prejudice by MSPB.

Accordingly, the Respondent asserts that it was not required to notify the Union of the meeting or provide the Union with an opportunity to be represented at the meeting.

IV. Analysis and Conclusions

Section 7114(a)(2)(A) of the Statute provides:

(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[.]

In part, section 7103(a)(9) defines "grievance" as "any complaint":

(A) by any employee concerning any matter relating to the employment of the employee;

. . . . . . .

(C) by any employee, labor organization, or agency concerning--

. . . . . . .

(ii) any claimed violation, misinterpretation, or misapplication of any law, rule, or regulation affecting conditions of employment[.]

In determining whether a union's right to representation attaches under section 7114(a)(2)(A), all the elements of that section must be present. There must be: (1) a discussion; (2) which is formal; (3) between one or more representatives of the agency and one or more unit employees or their representatives; (4) concerning any grievance or any personnel policy or practice or other general condition of employment. See, for example, Department of Health and Human Services, Social Security Administration and Social Security Administration Field Operations, Region II, 29 FLRA 1205 (1987).

It is undisputed that the August 6, 1987 meeting constituted a discussion and involved one or more representatives of the agency and one or more unit employees or their representatives. The questions presented here are whether the meeting was "formal" and whether the meeting concerned a "grievance."

For the following reasons, we conclude that the meeting was formal and concerned a grievance within the meaning of section 7114(a)(2)(A).

A. The Meeting Was Formal

In determining whether a discussion or meeting is "formal" within the meaning of section 7114(a)(2)(A), a number of factors are relevant. These are: (1) whether the individual who held the discussions is merely a first-level supervisor or is higher in the management hierarchy; (2) whether any other management representatives attended; (3) where the individual meetings took place (i.e., in the supervisor's office, at each employee's desk, or elsewhere); (4) how long the meetings lasted; (5) how the meetings were called (i.e., with formal advance written notice or more spontaneously and informally); (6) whether a formal agenda was established for the meetings; (7) whether each employee's attendance was mandatory; and (8) the manner in which the meetings were conducted (i.e., whether the employee's identity and comments were noted or transcribed). See, for example, Defense Logistics Agency, Defense Depot Tracy, Tracy, California, 14 FLRA 475, 477 (1984). This list is not exhaustive. Other factors may be identified and applied as appropriate in a particular case. Therefore, in determining formality, we consider the totality of the facts and circumstances presented.

The Respondent maintains that the provision for the meeting was included in the Stipulation and Dismissal at the request of Mr. Ortner and the meeting should be considered as having been initiated by the employee. Therefore, the Respondent argues that other indications of formality are outweighed by the fact that the employee was the catalyst for the meeting.

We disagree with the Respondent's argument. The meeting was required by a term of the Stipulation and Dismissal. The Stipulation and Dismissal was mutually agreed to by Mr. Ortner and the Respondent. Since the meeting was held by mutual agreement, the identity of the party which originally proposed the requirement for the meeting is not relevant to determining whether the meeting was formal within the meaning of the Statute.

In addition to requiring the meeting, the Stipulation and Dismissal also specified (1) the subject matter and agenda of the meeting, (2) who was to attend the meeting, and (3) that a memorandum of the meeting was to be issued to Mr. Ortner following the meeting. The meeting was conducted by Mr. Penn, the Support Services Supervisor, in his office and lasted approximately 1 hour. During the meeting, Mr. Ortner answered questions posed by the Support Services Supervisor and had his answers evaluated by the representatives of the Respondent.

These elements of formality lead us to conclude that the meeting was formal within the meaning of section 7114(a)(2)(A) and was not, as claimed by the Respondent, an informal counseling session. See, for example, Department of the Air Force, Sacramento Air Logistics Center, McClellan Air Force Base, California, 29 FLRA 594 (1987).

B. The Meeting Concerned a Grievance

In FCI (Ray Brook), we held that the term "grievance" in section 7114(a)(2)(A) should be interpreted broadly in light of its definition in section 7103(a)(9) of the Statute. We stated that the term can encompass a statutory appeal. An appeal to MSPB is an example of a statutory appeal. 29 FLRA at 590.

Mr. Ortner's appeal of his 30-day suspension to MSPB constitutes an employee complaint concerning a matter related to his employment. Therefore, the appeal satisfies the statutory definition of grievance. See Department of the Air Force, F.E. Warren Air Force Base, Cheyenne, Wyoming, 31 FLRA 541 (1988). The August 6 meeting constituted an enforceable term and condition of the settlement and dismissal of Mr. Ortner's MSPB appeal. Therefore, we find that the meeting was inextricably linked to the MSPB appeal and, consequently, concerned a grievance within the meaning of section 7114(a)(2)(A).

The fact that the appeal had already been dismissed at the time of the meeting is not dispositive because that dismissal was conditioned on the requirement for the meeting. We agree with the General Counsel that under the provisions of the Stipulation and Dismissal, Mr. Ortner could have petitioned MSPB to reinstate his appeal if the Respondent had not held the meeting. Consequently, this case is distinguishable from our decision in FCI (Ray Brook).

In FCI (Ray Brook), the sole purpose of the meeting was to permit the employee to make an oral reply to a proposed adverse action. No final decision had been made by the agency on the proposed action, and the employee had no basis for filing, and had not filed, an appeal to MSPB. In contrast, in this case there had been a final Agency decision and an appeal to MSPB had been filed. Moreover, Mr. Ortner's complaint was subject to reinstatement if the meeting had not been held.

In our view, the intent of section 7114(a)(2)(A) further confirms this conclusion that the meeting constituted a formal discussion. The rights and expectations of unit employees are influenced by the expression by management of its views on the propriety and acceptability of employee conduct of the sort discussed in the August 6 meeting. See FCI (Ray Brook), 29 FLRA at 591; see also NTEU v. FLRA, 774 F.2d 1181, 1188 (D.C. Cir. 1985). These are precisely the interests that union attendance at such meetings are intended to safeguard, and these were precisely the interests implicated by the August 6 meeting.

C. Summary

The August 6, 1987 meeting was a formal discussion under section 7114(a)(2)(A) of the Statute. Therefore, the Respondent failed to comply with the Statute when it failed to afford the Union advance notice of and an opportunity to be represented at the meeting and when it specifically denied the Union's request to be at the meeting. Accordingly, we find that the Respondent violated section 7116(a)(1) and (8) of the Statute, as alleged in the complaint.

We will order that the Respondent cease and desist from such conduct and take certain action to effectuate the policies of the Statute. In particular, we will order that the Respondent repeat the meeting with the Union's designated representative present on the request of the Union.

In our view, repeating the meeting effectuates the purposes of the Statute by providing the Union with the opportunity to represent and safeguard the interests of unit employees at a discussion of the job description, performance elements, and performance standards of a position in the unit. In addition, the meeting included a discussion of the use of official time and the Union's office. The Union has an obvious interest in attending a meeting during which these matters are discussed. In these circumstances, we conclude that it is appropriate to require the Respondent to repeat the meeting if so requested by the Union.

ORDER

Pursuant to section 2423.29 of our Rules and Regulations and section 7118 of the Statute, we order that the U.S. Department of Labor, Office of the Assistant Secretary for Administration and Management, Chicago, Illinois, shall:

1. Cease and desist from:

(a) Conducting formal discussions with its employees in the bargaining unit for which American Federation of Government Employees, Local 648, AFL-CIO is the agent of the exclusive representative National Council of Field Labor Locals, AFGE, AFL-CIO, concerning any grievance or any personnel policy or practices or other general condition of employment without affording AFGE Local 648 prior notice of and an opportunity to be represented at the formal discussions.

(b) In any like or related manner, interfering with, restraining, or coercing its employees in the exercise of their rights assured by the Statute.

2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute:

(a) On request of AFGE Local 648, repeat the meeting of August 6, 1987, with the agenda as set forth in the Stipulation of Settlement and Dismissal of Appeal entered into on July 24, 1987, with Mr. Roy Ortner.

(b) Post at its Chicago facility where employees in the bargaining unit are located copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the Regional Administrator and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places where notices to employees are customarily posted. Reasonable steps shall be taken to ensure that such Notice is not altered, defaced, or covered by any other material.

(c) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Region V, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply.

Issued, Washington, D.C.,

_______________________________
Jerry L. Calhoun, Chairman
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY

NOTICE TO ALL EMPLOYEES

AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY

AND TO EFFECTUATE THE POLICIES OF THE

FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE

WE NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT conduct formal discussions with our employees in the bargaining unit for which the American Federation of Government Employees, Local 648, AFL-CIO is the agent of the exclusive representative National Council of Field Labor Locals, AFGE, AFL-CIO, concerning any grievance or any personnel policy or practices or other general condition of employment without affording AFGE Local 648 prior notice of and an opportunity to be represented at the formal discussions.

WE WILL NOT in any like or related manner, interfere with, restrain, or coerce our employees in the exercise of their rights assured by the Statute.

WE WILL, on request of AFGE Local 648, repeat the meeting of August 6, 1987, which was held between Mr. Harold Penn, Ms. Donna Garcia, and Ms. Janet Graney and bargaining unit employee Mr. Roy Ortner and his private attorney with the agenda as set forth in the Stipulation of Settlement and Dismissal of App