File 2: Opinion of Member Cabaniss
[ v55 p984 ]
Dissenting Opinion of Member Cabaniss
I respectfully dissent from the majority decision because it has the effect of mandating a bargaining obligation for Federal agencies every time discipline is initiated against a bargaining unit employee, an outcome that is at odds with our Statute and our own case law.
At the outset, it is important to identify the actions giving rise to this alleged bargaining obligation. At issue here is whether there was a change to conditions of employment as a result of a disciplinary action (involving a suspension, repayment of a debt, and waiver of grievance/appeal rights) against an employee, taken in this instance by way of a last chance agreement. What this case is not about is whether the agency changed conditions of employment by deciding to use, for the first time, last chance agreements as part of its discipline process. Thus, unlike the focus of American Federation of Government Employees, Council 214 and U.S. Department of the Air Force, Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 38 FLRA 309 (1990) (AFLC), enforced 949 F.2d 475 (D.C. Cir. 1991), which upheld the negotiability of the use of last chance agreements generally, this case is not about whether using last chance agreements was a change in conditions of employment, and it is not about whether some new form of disciplinary or administrative requirement was being imposed on the employee. Rather, the focus of the case put forward by the General Counsel is on the impact to this particular employee from her agreeing to this last chance agreement.
An agency violates 5 U.S.C. § 7116(a)(1) and (5) when its fails to provide advance notice to an exclusive representative and an opportunity to bargain under section 7106(b) prior to the exercise of a section 7106(a) right when a more than de minimis change to conditions of employment will be caused thereby. See, e.g., United States Immigration and Naturalization Service, United States Border Patrol, Del Rio, Texas, 47 FLRA 225, 232 (1993). In determining whether a more than de minimis change to conditions of employment has taken place, the number of employees affected is not determinative, so a change to conditions of employment may take place when even only one bargaining unit employee is affected. See, e.g., Veterans Administration Medical Center, Phoenix, Arizona, 47 FLRA 419, 422-23 (1993). Thus, it is possible that an agency action affecting even only one employee can give rise to a bargaining obligation. However, as will be discussed, infra, assessing a possible bargaining obligation under the Statute requires more than just concluding that an employee or employees have been affected by some agency action (e.g., disciplinary actions, overtime [ v55 p985 ] assignments, or details effected in accordance with contractual procedures or past practice). The analysis certainly starts with assessing that impact (actual or reasonably foreseeable) on bargaining unit members, but that's not where the analysis ends.
In support of its position that the Agency has an obligation to bargain in the present case, the General Counsel points to the obvious impact of the terms of the last chance agreement on the employee and her working conditions. According to the General Counsel, this clear and unchallenged impact on the employee's employment situation is sufficient to show that a more than de minimis change in conditions of employment took place, thus requiring the Agency to provide the Union with advance notice and an opportunity to bargain over the terms of the last chance agreement.
What the General Counsel's position, and the majority decision, are based upon, however, is an analysis that conflates the distinction between two separate concepts: changing "conditions of employment" and changing the "working conditions" of an employee affected by those conditions of employment. Section 7103(a)(14) of our Statute notes that:
"conditions of employment" means personnel policies,practices, and matters, whether established by rule,regulation, or otherwise, affecting working conditions . . . .
An employee's "working conditions" are not, then, the same as the "conditions of employment" of that same employee. Changing "conditions of employment" would be, for example, the decision to create a policy to discipline employees for a certain type of conduct, while a change to "working conditions" would be the effect on an employee of being disciplined for having engaged in that same type of conduct. Thus, it should be apparent that changing an individual employee's "working conditions" is not automatically the same as changing "conditions of employment" since every disciplinary action results in a change to the disciplined employee's working conditions. The question must still be asked whether some personnel policy, practice, or matter, whether established by rule, regulation, or otherwise, affecting that employee's working conditions, has been changed.
Authority precedent bears this out. In Naval Amphibious Base, Little Creek, Norfolk, Virginia, 9 FLRA 774 (1982), the Authority articulated this distinction. In that case, the General Counsel pursued to complaint an allegation that an agency improperly refused to bargain (and hold in abeyance) proposed adverse actions against two bargaining unit employees. Although it was not disputed that the working conditions of the two employees had not been changed, the Authority held that:
The record does not establish that the Respondent, in implementing the two nondisciplinary adverse actions, established new, or changed existing, personnel policies, practices or matters affecting working conditions. On the contrary, the record evidence establishes that the procedures followed by the Respondent herein were no different from those prescribed by the parties' negotiated agreement or those which had been utilized in previous instances of nondisciplinary adverse actions resulting in changes of employee status or category.
Id. at 777. Clearly, then, not all changes to an employee's working conditions give rise to a finding that conditions of employment have been changed sufficiently to give rise to a bargaining obligation. See also Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, 18 FLRA 743, 757 (1985) (intra-district transfer pursuant to established practice); and U.S. Department of Transportation, Federal Aviation Administration, Washington, D.C. and Michigan Airway Facilities Sector, Belleville, Michigan, 44 FLRA 482, 495-96 (1992) (detail of employees pursuant to agreement).
In the present case, neither the General Counsel nor the majority point to any personnel policy, practice or matter that has been changed, although they do point to specific working conditions of the employee that were affected by the disciplinary action taken against her by way of the last chance agreement. Therefore, I would find no violation by the Agency's failure to provide advance notice and an opportunity to bargain to the Union over the Agency's decision to propose discipline against this employee.
I note that my resolution of this matter, and the majority's holding, is not tied to the use of a last chance agreement to accomplish this disciplinary action. As I stated earlier, the gravamen of the alleged change to conditions of employment asserted by the General Counsel does not deal with the choice of a last chance agreement or a new use of certain terms therein to discipline this employee. Rather, the General Counsel bases its case upon an analysis of the impact of that discipline on the employee's working conditions. As the majority's decision relies on a change in employee working conditions to find a bargaining obligation, without also finding that an underlying condition of employment was changed as well, my concern is that this decision will for all practical purposes be interpreted to impose a bar- [ v55 p986 ] gaining obligation on Federal agencies whenever an agency seeks to impose discipline upon a bargaining unit employee.
I would also find that there has been no improper bypass of the Union by the conduct in question here. As there was no right to be present by virtue of the Union's right to engage in collective bargaining over this matter, some other statutory or contractual right to be present must be established for there to have been an improper bypass by the Agency of the exclusive representative. None has been established in this case.
Authority precedent is clear as to what does and does not constitute a bypass when an Agency deals directly with an individual employee in violation of section 7116(a)(1) and (5). [n1] U.S. Department of Justice, Bureau of Prisons, Federal Correctional Institution, Bastrop, Texas, 51 FLRA 1339, 1346 (1996), citing Department of Health and Human Services, Social Security Administration, Baltimore, Maryland and Social Security Administration, Region X, Seattle, Washington, 39 FLRA 298, 311 (1991) sets forth the following principles:
Agencies unlawfully bypass an exclusive representative when they communicate directly with bargaining unit employees concerning grievances, disciplinary actions and other matters relating to the collective bargaining relationship. Such conduct constitutes direct dealing with an employee and is violative of section 7116(a)(1) and (5) of the Statute because it interferes with the union's rights under section 7114(a)(1) of the Statute to act for and represent all employees in the bargaining unit. Such conduct also constitutes an independent violation of section 7116(a)(1) of the Statute because it demeans the union and inherently interferes with the rights of employees to designate and rely on the union for representation.
Thus, a bypass violation is created by agency interaction with an employee when the agency should instead be dealing directly and exclusively with the appropriate exclusive representative.
Unions have a substantial statutory-based presence in matters relating to employee discipline in addition to the substantial bargaining rights they have regarding the disciplinary process. Unions have an independent institutional right under section 7114(a)(2)(A) to be present for any formal discussion between an employee and an agency regarding a grievance, within the meaning of that section. Unions also have an independent right under section 7121(b)(1)(C)(ii) to be present at the processing of any grievance under a negotiated grievance procedure, where the employee has chosen to present the grievance on his or her own behalf.
Unions have additional representational rights in the employee discipline process when an employee requests a union to act as the employee's representative. Section 7114(a)(2)(B) permits a union to be present during the investigative examination of an employee if the employee chooses to have a union representative present. [n2] Section 7121(b)(1)(C)(i) provides a union the right to present and process grievances under a negotiated grievance procedure on an employee's behalf if the employee chooses to have a union represent him or her. In addition, 5 U.S.C. §§ 7503(b)(3) and 7513(b)(3) allow a union presence as a representative during the processing of proposed disciplinary actions involving suspensions and other adverse actions where an employee chooses a union as his or her representative.
As this discussion makes evident, certain rights require the prior designation of the union by the employee before they come into play, others do not. Compare Norfolk Naval Shipyard, Portsmouth, Virginia, 35 FLRA 1069, 1073 (1990) (the right to union representation under section 7114(a)(2)(B) attaches only if an employee makes a valid request for union representation), with Department of Veterans Affairs Medical Center, Long Beach, California v. FLRA, 16 F.3d 1526,1533 (9th Cir. 1994) (section 7114(a)(2)(A) reflects a union's independent right to be present so that it may safeguard the interests of all union employees). A union's assertion of a right to be present, at any specific stage of the disciplinary process, will be upheld only where the appropriate standard has been met. See, e.g., U.S. Department of Justice, Bureau of Prisons, Federal Correctional Institution, 29 FLRA 584, 591 (1987), aff'd. sub nom., AFGE , Local 3882 v. FLRA, 865 F.2d 1283 (D.C. Cir. 1989) (a union did not have the right to be represented at an employee's oral reply to a notice of proposed disciplinary action because this was not a "formal discussion" under section [ v55 p987 ] 7114(a)(2)(A) of the Statute, nor was it a grievance as defined by section 7103(a)(9)).
A union also has the right to negotiate for additional representational entitlements beyond that provided by statute. See National Treasury Employees Union and U.S. Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms, Washington, D.C., 43 FLRA 1442, 1445 (1992), reversed on other grounds National Treasury Employees Union v. FLRA, 30 F.3d 1510 (D.C. Cir. 1994); AFLC, 38 FLRA at 332. In AFLC, the Authority held that a union could bargain over a right to be present when employees were to be offered last chance agreements (Proposal 3). Id. at 325-34. In so holding, the Authority expressly found that such a right was not already provided for by 5 U.S.C. § 7114(a)(2)(A) or (B), a fact that did not preclude the union from negotiating for representational rights exceeding those established by the Statute. Id. at 329-32.
Notwithstanding a union's right to negotiate extra representational rights, it is also clear that federal statutes set forth the right of a federal employee to choose his or her representative when facing proposed discipline and/or adverse action. See 5 U.S.C. § 7503(b)(3) [n3] and § 7513(b)(3). [n4] In U.S. Department of Justice and Immigration and Naturalization Service, 37 FLRA 1346, 1363 (1990), the Authority stated, "when faced with a proposed or impending disciplinary or adverse action, an affected employee has a choice of possible actions.... If the employee desires representation, the employee may seek the assistance of his or her union representative or the assistance of counsel or some other party. In any event, the choice is that of the employee."
The right to choose one's own representative is further addressed in 5 C.F.R. § 752.203 and 5 C.F.R. § 752.404. These sections state that the employee may, at his or her election, choose to be represented by an attorney or other representative of his or her own choice, with the only limitation being the right of an agency to disallow the employee's choice when certain circumstances are present. [n5] Under these C.F.R. provisions, an agency may disallow an employee's choice of representative only when the chosen individual has a conflict of interest in representing that employee, has priority work assignments which preclude his or her release, or if releasing that individual from their official position would be unreasonably costly. From this narrow limitation on the employee's right to choose his or her representative, it follows that if an employee chooses to have a lawyer, family member, or no one at all represent them, an agency has not bypassed a union when it deals with the non-union representative designated by that employee.
In the present matter, and consistent with the AFLC holding, the meeting between the Agency and this employee to discuss a proposed negotiated discipline agreement did not constitute the type of Agency-employee interaction under section 7114(a)(2)(A) for which the Union has an independent right to be present. Neither may it be concluded that a union's right of exclusive representation is inherently present in agency-employee interactions not rising to the level of matters covered by section 7114(a)(2)(A). The Authority has precedent expressly permitting unions to negotiate broader representation rights than already provided by the Statute. The right to negotiate broader representational rights would not be necessary if a union's right to act as the sole representative for employees already extended to matters not otherwise expressly provided for by the Statute, and the General Counsel has not explained how this precedent is erroneous. [ v55 p988 ]
There is no bypass in the present instance because, as previously noted, supra, the Union had no independent right to become involved in the matter at issue. It is clear that the last chance agreement initiated disciplinary action against the employee under sections 7503 and 7513, thereby triggering various statutory rights of the employee, including the right to avail herself of Union representation. The Agency's obligation to deal with the Union rather than the employee, and thus the potential for a bypass violation, does not arise unless and until the employee chooses the Union to act as her representative. Because she did not do so, no bypass violation took place here.
Footnote # 1 for 55 FLRA No. 160 - Opinion of Member Cabaniss
Compare, American Federation of Government Employees, National Council of HUD Locals 222 and U.S. Department of Housing and Urban Development, 54 FLRA 1267 (1998), which deals with bypass as it applies to an agency's dealings with another union and not an individual employee.
Footnote # 2 for 55 FLRA No. 160 - Opinion of Member Cabaniss
This provision incorporates the private sector rule of NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975) (holding that an employee has a right to union representation during an investigatory interview when the employee requests the union's presence, and that management has no duty to specifically inform the employee of this right).
Footnote # 3 for 55 FLRA No. 160 - Opinion of Member Cabaniss
§ 7503 Cause and Procedure
(b) An employee against whom a suspension for 14 days or less is proposed is entitled to-
(3) be represented by an attorney or other representative;
Footnote # 4 for 55 FLRA No. 160 - Opinion of Member Cabaniss
§ 7513 Cause and Procedure
(b) An employee against whom an action is proposed is entitled to-
(3) be represented by an attorney or other representative;
Footnote # 5 for 55 FLRA No. 160 - Opinion of Member Cabaniss
(d) Representation. Section 7503(b)(3) of title 5 of theUnited States Code provides that an employee covered by this part whose suspension is proposed is entitled to be represented during the action by an attorney or other representative. An agency may disallow as an employee's representative an individual whose activities as a representative would cause a conflict of interest or position, or an employee of the agency whose release from his or her official position would give rise to unreasonable costs or whose priority work assignments preclude his or her release. (emphasis added).
5 C.F.R. § 752.404 entitled Procedures states:
(e) Representation. Section 7513(b)(3) of title 5 of the United States Code provides that an employee covered by this part in entitled to be represented during the action by an attorney or other representative. An agency may disallow as an employee's representative an individual whose activiti