File 2: Opinion of Member Cabaniss and the Appendix

[ v55 p1040 ]


Dissenting Opinion of Member Cabaniss

The Discussion Did Not Concern a "Grievance," Pursant to Section 7114(a)(2)(A) of the Statute

      In agreement with the Judge, I find that the discussion at issue in this case did not concern a grievance. See Judge's Decision at 26. Section 7103(a)(9) of the Statute defines the term "grievance" broadly as "any complaint . . . by any employee concerning any matter relating to the employment of the employee. . . . " Applying this broad definition, the Authority and the courts have determined that a union's right to be present at "grievance" meetings, set out at section 7114(a)(2)(A), applies in a variety of situations, including meetings involving statutory appeals filed with the Merit Systems Protection Board and the Equal Employment Opportunity Commission, FCI, Ray Brook, 29 FLRA at 590-91; NTEU v. FLRA, 774 F.2d 1181, 1184-89 (D.C. Cir. 1985), and meetings conducted at the initial, informal stage of a negotiated grievance procedure. See FCI, Bastrop, 51 FLRA at 1344.

      It is clear in Authority precedent, however, that not every meeting relating to the employment of an employee is considered to be a grievance meeting. The Authority has held that a union does not have a right to be present at meetings during which discipline is proposed, and the employee is offered an opportunity to make an oral reply to the proposed discipline. FCI, Ray Brook, 29 FLRA at 590-91. In FCI, Ray Brook, the Authority reasoned that such meetings do not involve a grievance because the agency has not made a final decision regarding the proposed action, the employee has no basis for filing a statutory appeal in the absence of such a decision, and the employee has not filed a grievance under the negotiated grievance procedure. Id.

      Here the General Counsel argues that the Union had a right to attend a meeting called to discuss the concerns of an employee and her supervisor, where no discipline had been proposed by the Respondent and no formal or informal grievance had been pursued by the employee. I would find that the right of a union to attend grievance meetings does not apply to this type of meeting, for reasons similar to those set out in FCI, Ray Brook. In particular, I would find that a meeting that takes place where no final decision has been made by the Respondent, no statutory procedure has been invoked, and no informal or formal negotiated grievance has been filed, does not constitute a grievance meeting.

      The General Counsel's reliance on FCI, Bastrop and other cases as supporting the Union's right to be present at the meeting here is misplaced. [n1]  Although this precedent construes the term grievance to involve a variety of "complaints," each of these cases involved circumstances where the employee had invoked, at least informally, a contractual or statutory appeal procedure. The case law does not support a conclusion that the statutory term "complaint" includes a "contemplated" complaint, where the employee has not filed an informal or a formal grievance or a statutory appeal. See e.g., FCI, Ray Brook, 29 FLRA at 589-93.

      The United States Court of Appeals for the District of Columbia Circuit, following an extensive discussion of the proper construction of the term "grievance" in section 7114(a)(2)(A), concluded that "grievance" under section 7114(a)(2)(A) should be interpreted in light of its broad definition in section 7103(a)(9) of the Statute. NTEU v. FLRA, 774 F.2d at 1184-89; FCI, Ray Brook, 29 FLRA at 590. As stated above, under section 7103(a)(9), as applicable here, a "`grievance' means any complaint . . . by an employee concerning any matter relating to the employment of the employee[.]" The term complaint is defined in Webster's Third New International Dictionary 464 (1986) (unabridged) with several meanings, including

the act or action of expressing protest, censure or resentment[ ]; [and] a formal allegation or charge against a party made or presented to the appropriate court or officer[ ]

The purpose of section 7103(a)(9) of the Statute is to define the matters that may be presented to agencies by employees. Accordingly, I conclude that Congress intended its reference to "complaint" to have the latter meaning. [n2]  As applied in this case, inherent in the concept of a grievance is the idea that the employee has invoked a complaint process, making an allegation, and submitting it to one of the Respondent's officials. Under the collective bargaining agreement at issue here, this process is invoked by orally filing an "informal grievance" with a supervisor. Judge's Decision at 18, n.7. [ v55 p1041 ]

      Here, the employee testified that she had not filed a grievance or asked the Union to file a grievance on her behalf. [n3]  She also testified that she expected the meeting would not be related to disciplinary action in any way. [n4]  See Hearing Transcript at 153, 164, 203. The Judge found that the meeting was designed to address the Respondent's concerns with respect to the employee's assignments and performance. Specifically, the Judge found that "[c]ontrary to the General Counsel's characterization . . . the meeting was not for the purpose of resolving [the grievant's] concerns[.]" Judge's Decision at 14. However, the employee's concerns about her perceived communication breakdown with her supervisor were discussed. These "concerns" about "communication" do not, however, constitute a grievance under the collective bargaining agreement or a "complaint" under section 7103(a)(9). See FCI, Ray Brook, 29 FLRA at 591; U.S. Department of Justice, United States Marshals Service and International Council of U.S. Marshals Service Locals, AFGE, 23 FLRA 414, 418 (1986). If that were the case, any meeting between management and an employee could be termed a grievance, as long as the agency and the employee understood that employee "concerns" might be at issue. Such an interpretation would ground a union's right to participate on a vague and subjective determination, which would be difficult to apply.

      The Judge's finding that the discussion did not concern a grievance is supported by the record. The Judge found, and it is not contested, that the employee did not file a written grievance, pursuant to the parties' collective bargaining agreement, and the employee did not discuss, with the steward, the "possibility of filing a grievance." Judge's Decision at 18-19. Moreover, neither the employee nor the Respondent's officials ever stated that the discussion concerned a grievance. Finally, the employee did not request that the union file a grievance.

      The grievance filed on September 28 by the Union concerned the Respondent's cancellation of a meeting--not the employee's concerns or performance or conduct problems. See Joint Exhibit 2; Judge's Decision at 23. The Union's written grievance mentioned the employee in connection with the canceled meeting, but did not identify the subject matter it intended to discuss at that meeting. Moreover, the remedies requested by the Union in that grievance all pertained to the Union, rather than to the employee's personal concerns. Consequently, when the Respondent's officials met with the employee on October 16, there was no reason for them to draw a connection between the subject of their discussion and the subject of the grievance (the canceled meeting). In my view, the Judge properly found that the Respondent would have had no idea that the employee's personal concerns were intended to be subsumed in the grievance concerning the Union's institutional rights that was filed on September 28.

      I note that in my colleagues' discussion of the formal grievance in Part IV. A. 2. at p.11 above, they state that "the formal grievance . . . explained that the Union official had attempted to initiate a grievance on behalf of the employee under the first step of the grievance procedure." The Union's letter actually states that the grievant "was contemplating a grievance against the Service[,]" and that the Union official informed the supervisor of his "intentions to visit her office in connection with a possible grievance under [his] consideration." See Joint Exhibit 2 at 1 (emphasis added). I disagree with my colleagues' equation of a "contemplated grievance" and a "possible grievance" as an attempt "to initiate a grievance." The terms clearly demonstrate that the employee had not yet decided whether to initiate a grievance. The record testimony further substantiates this fact because the employee never in fact filed a grievance.

      Because the employee had not filed a grievance, or requested the Union to file a grievance on her behalf, and because no other complaint or formal or informal allegation or charge was pending involving the grievant, the discussion did not concern a grievance. Instead, the meeting was about the Respondent's and the employee's concerns regarding the employee's work assignments and job performance. In the workplace, management officials and individual employees frequently discuss differences of opinion in order to communicate and work together. While employees and managers may, and often do, ask a union to assist in [ v55 p1042 ] resolving such differences of opinion, I would not interpret the Statute as requiring the presence of a union at all such meetings. The Statute specifies that unions only be required to be permitted to attend the specific meetings set out in section 7114(a)(2) that involve "any grievance or any personnel policy or practices or other general conditions of employment."

      My colleagues' finding that the October 16 meeting concerned a grievance is contrary to the record and the Judge's findings of fact. [n5]  At most, the record reveals that the employee may have been contemplating filing a grievance. As I have explained, I would find that a contemplated grievance does not constitute a "grievance" within the meaning of section 7114(a)(2)(A) of the Statute. [n6] 

      In sum, I disagree with the liberty taken by my colleagues in disregarding the Judge's findings of fact, and in creating their own adaptation of the record. I rely on the Judge's assessment of the demeanor of the witnesses and the credibility of their testimony before him, and his findings of fact based on the record. The record is clear that the October 16 meeting did not concern a grievance. Because the meeting did not concern a grievance, the Respondent did not violate the Statute when it held the meeting and further, did not bypass the Union in holding the meeting.


APPENDIX

/ COPY EXHIBIT (JT#2) 10/8/96 /

Local 1917
P.O. Box 684
Church St. Station
New York, N.Y. 10008-0684
Tel. / Fax (212)264-3281

September 28, 1995

Director - Asylum Unit New York
U.S. Department of Justice
Immigration & Naturalization Service
I Cross Island Plaza
Rosedale, N.Y. 11422

Dear Madam:

      Please refer to Article 47, Step II of our Negotiated Agreement. This grievance is being brought to you pursuant to that section of the contract.

      Ms. [ ], an employee under your jurisdiction, was contemplating a grievance against the Service and had an occasion to request Union representation. I was contacted by Ms. [ ] on September 20, 1994 and subsequently was made aware of her intent. Pursuant to our Negotiated Agreement as well as our long established past practice, investigations relative to grievances at Step I level are conducted in person and informally. This is done to explore any possibility of resolving said grievances without them having to be escalated to any further level. Therefore, on September 21, 1995 I telephonically contacted [the supervisor], who is the first-line supervisor of the grievant. I informed [the supervisor] of my intentions to visit her office in connection with a possible grievance under my consideration. I requested that a mutual date be set in order to facilitate our face-to-face meeting. [The supervisor] and I, had agreed upon September 25, 1995 to be the date for our discussion on the matter. Immediately after, I had secured official time through my LMR liaison at my official duty station, JFKIA, for the purposes outlined above. On September 22, 1995 1 was contacted by [the supervisor] and was told that our previously scheduled meeting was being canceled, and furthermore, [the supervisor] had solicited the disclosure of the subject-matter and my agenda of the meeting in writing, so that she can determine whether our meeting was warranted. I explained to [the supervisor] that it would be contrary to our past practice, and to our Negotiated Agreement, for me to discuss the subject-matter through formal means, such as putting it on paper. Additionally, I advised [the supervisor] that our present Labor-Management Partner- [ v55 p1043 ] ship policy favors amicable settlement of grievances at the lowest possible level. Section 7114(b) of the CSRA codifies this requirement by necessitating the agency and the union to "negotiate in good faith" over matters included in subsection (a), which includes matters "concerning any grievance" and other employment related issues.

American Federation of Government Employees

JT EXHIBIT 2
STEP 11- PAGE TWO
September 28, 1995

      I further suggested that she reconsider her decision, not to have a meeting with me, and to advise me as to her plan of action as soon as possible. She assured me that I would be getting a phone call from her by the end of the business day. That call never followed.

      On September 27, 1995 1 had an occasion to speak with the grievant, [. . . ]. She stated to me that she had invoked her rights under the Agreement and pursuant to 5U. S.C. Chapter 71, in connection with her desire to pursue her grievance, however, her supervisor [. . . ] did not entertain her request nor any of her concerns. Section 5 U. S.C. 7116(b)(1) prohibits interference with the exercise of employee rights under the CSRA- Relevant Article 6 of our Negotiated Agreement also states in part:

"The Service shall not impose any restraint (except as may be otherwise Provided in this Agreement), interference, coercion, or discrimination Against employees in the exercise of their rights to organize and designate Representatives of their own choosing for the purposes of collective bargaining, the presentation of grievances,...."

      This brings us to this level of our grievance procedure and since we are at the formal stage, I am going to elaborate further on the issue.

      As reflected above it appears that the rights of Ms. [ ] were violated when she elected to file a grievance, and was precluded from being allocated time to do so, as well as from having her exclusive representative, (Union), present to conduct an interview and subsequent investigation. Article 47(E) of our Negotiated Agreement states in part:

"The Union representative must be present if the employee so desires."

      Furthermore, it appears that the Union was precluded from fulfilling its representational duties, as management's side appeared reluctant to "bargain in good faith," (5 U. S.C. 7114 (a)), in that, they failed to set up a mutual date in order to arrive at possible resolution on the matter.

      Moreover, it appears that the Union was restrained from rendering its statutorily required assistance of fair representation to an employee, (5U.S.C. 7116(b)(8)). Additionally, 5 U.S.C. 7114(b)(4), The Union's and the Grievant's Rights to Conduct Investigations, that states in part:

"The Union has the right to interview witnesses and to request the release Of necessary and relevant information relating to grievances and potential Grievances."

      The above section of law appears to have been violated by the Service as well. In order not to elevate this grievance any further we suggest the following remedies:

STEP 11-PAGE THREE
September 28, 1995

(1)     Management at the Asylum Unit should be reminded to adhere to the Title 5 U. S.C. Section 7114, that states in part:
"Labor organization which has been accorded exclusive recognition: is responsible for representing the interests of all Bargaining Unit Employees whether they are Union members or not,
Must be given the opportunity to be represented at all formal discussions between management and employees concerning grievances, personnel policies and practices, or other general conditions of employment...."
(2)     Management must recognize the Union as the Exclusive Representative of the Bargaining Unit, as it is stipulated in the law as well as in our Negotiated Agreement Article 5(A), to wit:
"The Union is the exclusive representative of the employees in the unit and is entitled to act for, and represent the interests of all employees in the unit"
(3)     Ms. [ ] , the grievant, must be afforded the opportunity, in the timely manner, to meet with the Union representative in order for her to address her complaint. [ v55 p1044 ]
(4)     The Union must be afforded the opportunity to meet with the grievant in order for us to extract all of the pertinent information to determine if further action is needed. We have yet to talk to the grievant on the matter, as non-confidential means of communication, such as telephone, are not adequate.
(5)     After fulfilling our remedy in number four (4), the Union must be afforded the opportunity, in the timely fashion, to meet with a management representative, such as the grievant's first-line supervisor, to discuss and possibly settle issues concerning Ms. [  ] .
(6)     Management at the Asylum Unit must be reminded to adhere to the Statutes and the Negotiated Agreement language, which has been cited throughout this correspondence.

Thanking you in advance for your time and attention with regard to this matter.

Sincerely,

[ ]

Steward

Local 1917, AFGE, AFL-CIO


File 1: Authority's Decision in 55 FLRA No. 170
File 2: Opinion of Member Cabaniss and the Apendix
File 3: ALJ Decision


Footnote # 1 for 55 FLRA No. 170 - Opinion of Member Cabaniss

   See FCI, Bastrop, 51 FLRA at 1357; Veterans Administration Medical Center, Long Beach, California, 41 FLRA 1370, 1379-80 (1991); U.S. Department of Labor, Office of the Assistant Secretary for Administration and Management, Chicago, Illinois , 32 FLRA 465, 471-72 (1988); FCI, Ray Brook, 29 FLRA at 591-93; and compare General Services Administration, 50 FLRA 401, 404 (1995).


Footnote # 2 for 55 FLRA No. 170 - Opinion of Member Cabaniss

   I do not agree with my colleague that the dictionary definition of the term "complaint" is helpful in construing the term "grievance." See n.13 above. Nor do I agree with my colleague that the definition of "grievance" within the meaning of the Statute can be extended. See n.7 above. Congress has supplied a specific definition of this term that I cannot ignore.


Footnote # 3 for 55 FLRA No. 170 - Opinion of Member Cabaniss

   I strongly disagree with my colleagues' conclusion that "it would be inappropriate to give dispositive weight to [the employee's] response when questioned whether she discussed a 'grievance' with the [U]nion." See pp. 14-15 above. My colleagues were not present at the hearing and, therefore, have no basis on which to assess the employee's credibility or demeanor. It is an affront to the employee and to the Judge's credibility determinations to conclude that the employee did not understand the concept of discussing a grievance.


Footnote # 4 for 55 FLRA No. 170 - Opinion of Member Cabaniss

   In this regard, nothing in this case invokes an exclusive representative's right, under section 7114(a)(2)(B) of the Statute, to attend a meeting leading to disciplinary action if requested by an employee. A union's right to participate in grievance discussions is distinct from an employee's right to be represented by the union. An employee has a right to request union representation during investigatory interviews where discipline is contemplated. See 5 U.S.C. § 7114(a)(2)(B). An employee also has a general right to representation when adverse actions are proposed. See 5 U.S.C. §§ 7501, 7513. These employee rights are not at issue here.


Footnote # 5 for 55 FLRA No. 170 - Opinion of Member Cabaniss

   Although my colleagues rely on the statements in the Union's September 28 grievance letter that the employee had asked the Union to file a grievance on her behalf, the Judge had the best opportunity to evaluate the employee's contradictory testimony and the Union's letter and concluded that the employee had not, in fact, asked the Union to file a grievance on her behalf. I note that no exceptions were filed to the Judge's credibility findings. See Redstone Arsenal Exchange, Army and Air Force Exchange Service, Redstone Arsenal, Alabama, 50 FLRA 51 (1994). Because no exceptions were filed to the Judge's credibility findings, I know of no reason for the majority to derive their own credibility determinations and findings of fact.


Footnote # 6 for 55 FLRA No. 170 - Opinion of Member Cabaniss

   My colleagues believe that my view of what constitutes a grievance "restricts an employee's access" to the protection