Social Security Administration, Office of Hearings and Appeals, Boston Regional Office, Boston, Massachusetts (Respondent/Agency) and American Federation of Government Employees, Local 1164, AFL-CIO (Charging Party/Union)

[ v59 p875 ]

59 FLRA No. 160

SOCIAL SECURITY ADMINISTRATION
OFFICE OF HEARINGS AND APPEALS
BOSTON REGIONAL OFFICE
BOSTON, MASSACHUSETTS
(Respondent/Agency)

and

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES,
LOCAL 1164, AFL-CIO
(Charging Party/Union)

BN-CA-02-0266
BN-CA-02-0434

_____

DECISION AND ORDER

April 30, 2004

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members [n1] 

I.      Statement of the Case

      This unfair labor practice case is before the Authority on exceptions to the attached decision of the Administrative Law Judge filed by the Respondent and cross-exceptions filed by the General Counsel. The General Counsel filed an opposition to the exceptions.

      The complaints allege that the Respondent violated § 7116(a)(1) and (8) of the Federal Service Labor-Management Relations Statute (the Statute) by holding three formal discussions with bargaining unit employees without affording the Union notice and an opportunity to be represented as required by § 7114(a)(2)(A) of the Statute. The formal discussions were alleged to have occurred when independent contractors, on behalf of the Respondent, questioned witnesses by e-mail and/or telephone pursuant to EEO requirements. The Judge concluded that the Respondent violated the Statute as alleged with respect to one discussion in Case No. BN-CA-02-0266, and he dismissed the complaint in Case No. BN-CA-02-0434 with respect to the two other discussions.

      Upon consideration of the Judge's decision and the entire record, we reverse the Judge's conclusions for the reasons discussed below, and adopt the recommended Order only to the extent consistent with this decision.

II.      Background

      The Southwind Corporation (the contractor) is a business that was the successful bidder to conduct investigations of equal employment opportunity (EEO) complaints filed by some employees against the Respondent.

      In Case No. BN-CA-02-0266, an investigator for the contractor conducted a phone conversation with a unit employee while she was at work, in which he spoke with her about a co-worker who had filed an EEO complaint. Neither the investigator nor any official of the Respondent advised the Union of the telephone call before it was made.

      In Case No. BN-CA-02-0434, another investigator for the contractor conducted phone conversations with two other unit employees at their homes. These interviews concerned another unit employee's formal EEO complaint. Neither the investigator nor any official of the Respondent advised the Union of the telephone calls before they were made.

      The General Counsel issued complaints alleging that the interviews conducted by the investigators were formal discussions and that since the Respondent had not given notice to the Union, the Respondent violated § 7116(a)(1) and (8) of the Statute.

III.      Judge's Decision

      Applying the criteria established by Authority precedent, the Judge concluded that all of the interviews constituted "formal discussions" within the meaning of § 7114(a)(2)(A) of the Statute.

      He found that there was "no doubt" that the interviews constituted a "discussion," because the questions and answers lasted ten to twenty minutes. Judge's Decision at 7. He also found there was "no doubt" that the discussions were "formal," because the interviewers had a pre-determined agenda of what they wanted to inquire about; the interviews were recorded; participation by employees was mandatory; and failure to cooperate was subject to discipline. Id. Citing Authority precedent, he also found that the fact that the interviews were conducted by telephone did not diminish the formal nature of these discussions.

      The Judge further concluded that "[p]lainly, the interviews were between a representative of Respondent and bargaining unit employees." Id. [ v59 p876 ]

      In addition, he rejected the Respondent's assertion that the formal discussions did not concern a "grievance" since the interviews were held in connection with formal EEO complaints. In this regard, the Judge reviewed Authority and judicial precedent and noted that in Dover Air Force Base v. FLRA, 316 F.3d 280 (D.C. Cir. 2003) (Dover AFB), affirming, United States Dep't of the Air Force, 436th Airlift Wing, Dover Air Force Base, Dover, Delaware, 57 FLRA 304 (2001) (Dover), the D.C. Circuit had affirmed the Authority's holding that such interviews constitute grievances within the meaning of the Statute.

      Further, the Judge stated that the "more interesting question is whether the Union was given an opportunity to be represented at the formal discussions." Id. at 9. In Case No. BN-CA-02-0266, he found that because the investigator "called [the unit employee] at her desk, obviously, the Union had no opportunity to be represented at the interview[.]" Id. As such, the Judge found that the Respondent violated § 7116(a)(1) and (8) of the Statute. As a remedy, he ordered in relevant part that the Respondent post a notice signed by the Director of the Office of Civil Rights and Equal Opportunity, Social Security Administration, Baltimore, Maryland (OCREO Director).

      However, in Case No. BN-CA-02-0434, the Judge found that the Union was given notice and an opportunity to be represented at both formal discussions. In this regard, the Judge found that both employees, after receiving e-mails from the investigator regarding the interviews, informed the Union and/or forwarded copies of these e-mails to the Union. Relying on these findings, the Judge stated the following:

[The two unit employees], each, when [the interviewer] first sent an e-mail in which she explained that she needed to interview them in connection with a formal EEOC complaint filed by [another unit employee], informed the Union of their impending interview. While [the interviewer] did not give the Union notice of the [two unit employees'] interviews, the employees did. Because the Union had knowledge of the interviews and, accordingly, had the opportunity to be represented at the [two unit employees'] interviews, [§ 7114(a)(2)(A)] was fully complied with.

Judge's Decision at 9 (underscoring in original).

IV.      Respondent's Exceptions

      The Respondent asserts that both complaints should be dismissed because the Judge erred in concluding that the elements of § 7114(a)(2)(A) were satisfied. The Respondent filed five exceptions to the Judge's decision.

      First, the Respondent excepts to the Judge's conclusion that all three interviews constituted discussions under § 7114(a)(2)(A). The Respondent does not further specifically address this exception.

      Second, the Respondent excepts to the Judge's conclusion that the three discussions were formal. The Respondent contends that, "[b]y means of their brevity and limited scope of inquiry," these discussions were not formal. Respondent's Exceptions at 17. According to the Respondent, "[t]he absence of any kind of true formality and the absence of any supervisor or management official should be sufficient to reach the conclusion that none of the three phone conversations ever approached the status of a `formal discussion.'" Id. at 19. In support, the Respondent cites Social Security Admin., and Social Security Admin., Field Operations, New York Region, 16 FLRA 1021 (1984) (SSA, NY Region). The Respondent also argues that the discussions were not formal because the involvement of a third party, like a union, in the EEO process would be inefficient because it would lengthen the time it takes to conduct investigations.

      Third, the Respondent contends that the Judge erred when he concluded that the investigators were representatives of the Respondent. According to the Respondent, the investigators' "control and direction emanate from the Southwind Corporation and from EEOC Management Directive MD-110, with the result being that their relationship to the Social Security Administration is tenuous at best." Exceptions at 12.

      Fourth, the Respondent excepts to the Judge's conclusion that the interviews concerned a grievance within the meaning of the Statute. In this regard, the Respondent relies on the decision of the 9th Circuit in Luke AFB v. FLRA, 208 F.3d 221 (9th Cir. 1999).

      Finally, if the Authority finds that the Respondent violated the Statute, the Respondent excepts to the Judge's order that the notice be signed by the OCREO Director. The Respondent claims that this remedy is "disproportionate" because the Judge dismissed the complaint in Case No. BN-CA-02-0434 and "was able to find only one violation involving a single employee of the Manchester, New Hampshire Hearing Office[.]" [ v59 p877 ] Id. at 20. According to the Respondent, "[s]everal persons within the Boston Region would make better candidates for signing the required [n]otice than the national civil rights director." Id. at 21.

V.      General Counsel's Opposition

      The General Counsel opposes each of the Respondent's five exceptions.

      The General Counsel asserts that the Respondent's first exception should be rejected because the Respondent made no argument in support of this exception and does not dispute that the interviews consisted of questions and answers so that they constitute discussions under the Statute.

      As to the Respondent's second exception, the General Counsel contends that the Judge correctly concluded that the elements of formality were met in all three interviews. The General Counsel asserts that under the totality of the circumstances test applied by the Authority, the interviews were formal in nature. The General Counsel disputes the Respondent's reliance on SSA, NY Region, and states that "[w]hile [that] case was in some ways similar to the instant case, the [SSA, NY Region] analysis of formality was rejected by the Authority" in Luke Air Force Base, Arizona, 54 FLRA 716 (1998) (Luke I), rev'd, 208 F.3d 221 (9th Cir. 1999), cert. denied, 121 S. Ct. 60 (2000). General Counsel's Opposition at 7. According to the General Counsel, a "better precedent, and one which has not been subsequently rejected by the Authority, is Veterans Administration Medical Center, Long Beach, California, 41 FLRA 1370 (1991), enforced, 16 F.3d 1526 (9th Cir. 1999) (VA Long Beach)." Opposition at 7. The General Counsel contends that the facts in the instant case show even more formality than was found in VA Long Beach. Finally, the General Counsel argues that the Respondent's argument about the efficiency of the EEO process should be rejected because the Authority has never considered efficiency of process as a factor when considering formality.

      As to the Respondent's third exception, the General Counsel contends that the Judge correctly concluded that the investigators were acting as the Respondent's representatives when they were interviewing the three unit employees. The General Counsel asserts that just as in Defense Logistics Agency, Defense Depot Tracy, Tracy, California, 39 FLRA 999, 1013 (1991) (Defense Depot Tracy), where the Authority found that Employee Assistance Program Counselors who had been contracted to do the work were agency representatives, the interviewers in the instant case were agency representatives.

      With respect to the Respondent's fourth exception, the General Counsel contends that the Judge correctly followed the Authority's precedent in determining that the three interviews concerned grievances within the meaning of the Statute. In particular, the General Counsel relies on the Authority's decision in Dover, enforced by the D.C. Circuit, in which the Authority reaffirmed its consistent view that EEO complaints pursued through the statutory procedure are grievances within the meaning of § 7114(a)(2)(A) of the Statute.

      Finally, as to the Respondent's fifth exception, the General Counsel asserts that the Judge correctly concluded that the notice should be signed by the OCREO Director. The General Counsel contends that the OCREO Director is "the only management official who is appropriate to sign the notice posting" because that official is the one who is involved in the hiring of the EEO contractor and "signs the notice to all employees that the particular contract investigator is authorized by the Respondent to conduct the investigation on its behalf." General Counsel's Opposition at 13.

VI.     General Counsel's Cross-Exceptions

      The General Counsel filed two cross-exceptions in Case No. BN-CA-02-0434.

      First, the General Counsel excepts to the Judge's factual findings that the two unit employees contacted a Union representative and informed her of the interviews before the interviews took place. According to the General Counsel, the record does not reflect when either of the two employees spoke with the Union representative in relation to the interview. The General Counsel contends that the Judge inferred from the testimony of one of the employees that the employee spoke to the Union representative "before the interview, but there is nothing in the record to support this inference." General Counsel's Cross-Exceptions at 15 (emphasis in original). The General Counsel asserts that a "more sensible inference, if one needs to be made," is that the employee spoke to the Union representative after the interview. Id. According to the General Counsel, the Judge used "this mischaracterization of the record to determine that the Union had notice of the interviews" of both employees and "thus, the Respondent met its statutory obligation to provide notice to the Union." Id. at 15-16 (footnote omitted).

      Second, the General Counsel asserts that the Judge erred not only in finding that the Union had notice of the interviews, but also in finding that the Union therefore [ v59 p878 ] had an opportunity to attend the interviews. The General Counsel argues that, even assuming that the Judge was correct in finding that the two employees called the Union representative before the interviews, "the record is utterly devoid of any indication of when these calls took place or what was said." Id. at 17. Accordingly, the General Counsel contends that there is no record support for the Judge's conclusion that the Union had actual notice of, and an opportunity to be present at, the interviews.

      In further support, the General Counsel asserts that the Judge's conclusion that the Union was aware of the two interviews is improper because the Respondent never raised the defense of actual notice. The General Counsel contends that by misconstruing testimony and applying his finding to a defense that was never raised by the Respondent, the Judge's conclusions prevented the parties from having the opportunity to properly litigate the issue at the hearing and thereby violated due process.

VII.     Analysis and Conclusions

      In order for a union to have the right to representation under § 7114(a)(2)(A), there must be: (1) a discussion; (2) which is formal; (3) between a representative of the agency and a unit employee or the employee's representative; (4) concerning any grievance or any personnel policy or practice or other general condition of employment. Dover, 57 FLRA at 306; Luke, 54 FLRA at 723; Gen. Servs. Admin., 48 FLRA 1348, 1354 (1994) (GSA).

      As stated in Dover, in order to determine whether meetings constitute formal discussions under § 7114(a)(2)(A), the totality of the circumstances presented must be examined and the following illustrative factors are considered: (1) the status of the individual who held the discussions; (2) whether any other management representatives attended; (3) the site of the discussions; (4) how the meetings for the discussions were called; (5) the length of the discussions; (6) whether a formal agenda was established; and (7) the manner in which the discussions were conducted. Dover, 57 FLRA at 307.

      We will apply these factors to each of the three meetings.

A.     Whether the Discussions Were Formal

1.     Meeting 1 (Rosanne Moore) (Case No. BN-CA-02-0266)

      Michael Gear, an investigator for the contractor, called Rosanne Moore, a unit employee at the Manchester Office of Hearings and Appeals, at her office and identified himself. He asked Moore if she had knowledge of what another unit employee who had filed a formal EEO complaint did for work. Next, Gear asked Moore if she had knowledge of the other employee's problems with management and Moore said she had no first-hand knowledge. Gear then asked Moore what her position was. After Moore told him, he began asking questions about Moore's performance. At this point, Moore told Gear that she did not see the relevance of this line of questions. Gear declined to explain the relevance and Moore terminated the call.

      In applying the seven factors in Dover, 57 FLRA at 307, we find that this phone conversation did not constitute a formal discussion based on the totality of the circumstances. In particular, we find that this conversation was not formal since the interview was not scheduled in advance, took place in the employee's private office, was terminated by the employee, and was not documented by affidavit or confirming letter. See, e.g., Harry S. Truman Memorial, Veterans Hospital, Columbia, Missouri, 16 FLRA 1049, 1051 (1984) (Authority found discussion not formal that was held in first-line supervisor's office, called in an impromptu manner without formal advance written notice, lasting a few moments, without a formal agenda and without transcript of meeting); Marine Corps Logistics Base, Barstow, California, 45 FLRA 1332 (1992) (Authority found meeting not formal where it was held on the shop floor, lasted 10 minutes, only the first-line supervisor attended the meeting, no agenda was prepared and no notes were taken). Accordingly, we dismiss the complaint as to this allegation, without addressing the parties' other arguments. [n2] 

2.     Meeting 2 (Colleen Barry) (Case No. BN-CA-02-0434)

      On January 28, Dyanne Engberg, an investigator for the contractor, sent an e-mail to Colleen Barry, a unit employee in the Somerville Office, in which she explained that she needed to interview Barry about the formal complaint filed by another unit employee, and gave her an option of being interviewed by telephone at work or at home. Barry replied that she would prefer being interviewed at home and an appointment was made for January 30 at 6:30 p.m. The telephone interview [ v59 p879 ] lasted about twenty minutes and, with Barry's knowledge, was tape-recorded. Engberg told Barry that she would be sending her a statement of their conversation so that she could make any corrections, sign it, and return the statement to Engberg. On March 1, Engberg e-mailed Barry a statement based on their January 30 conversation, and the statement was accurate.

      We find that this conversation constituted a formal discussion within the meaning of the Statute. Unlike the telephone conversation involving Moore, Barry had advance notice of the topic of the conversation; the interview was tape-recorded; and a statement describing the conversation was prepared and given to Barry, who agreed that it was accurate. These circumstances demonstrate that this discussion was formal. See United States Immigration and Naturalization Service, United States Border Patrol, El Paso, Tex., 47 FLRA 170, 183 (1993) (INS, El Paso) (Authority found that depositions conducted by agency in preparation for MSPB proceedings were formal discussions); VA Long Beach, 41 FLRA at 1379-80 (Authority found that telephone interviews conducted by the agency's attorney were formal discussions given the employee's advance notice of the interview and that such interview was mandatory).

3.     Meeting 3 (Kathy Houba-Kane) (Case No. BN-CA-02-0434)

      In late winter of 2001, Engberg sent an e-mail to Kathy Houba-Kane, a unit employee in the Somerville Office, stating that she needed to interview her in connection with a formal EEO complaint. Houba-Kane responded that she would prefer being interviewed by phone at home and Engberg arranged a time a few days later for the interview. Engberg called, told her that the conversation would be recorded and promised to send a copy to her home address. Engberg did not send a copy to Houba-Kane's home address, but Houba-Kane did receive the statement by e-mail at work a few weeks later.

      We find that this conversation, like the one with Barry, constituted a formal discussion within the meaning of the Statute. Unlike the telephone conversation involving Moore, Houba-Kane had advance notice of the topic of the conversation; the interview was tape-recorded; and a statement describing the conversation was prepared and given to Houba-Kane. These circumstances demonstrate that this discussion was formal. See INS, El Paso and VA Long Beach cited above.

      Despite finding that these two conversations constituted formal discussions, the Judge dismissed the complaint because he found that the Union had received actual knowledge of the interviews from Barry and Houba-Kane before the interviews and had the opportunity to be represented at their interviews. The General Counsel takes exception to the dismissal of the complaint based on these findings on the grounds that: (1) the record does not reflect when either of the two employees spoke with the Union representative in relation to the interview; (2) even if the Union had actual notice of the interviews, there is no record support for the Judge's conclusion that the Union had an opportunity to be present at the interviews; and (3) the Respondent never raised the defense of actual notice, and the Judge's dismissal of the complaint on a basis that was never raised by the Judge prevented the parties from having the opportunity to properly litigate the issue at the hearing and thereby violated due process.

      We need not resolve whether the record supports the Judge's conclusions that the Union had actual notice of the interviews and had an opportunity to be present at them, because we agree with the General Counsel that the Judge erred by resolving the complaint on a basis that was not raised by the Respondent. It is clear from the record, as the General Counsel asserts, that the Respondent never raised the defense that the Union had actual notice and an opportunity to be present at these interviews. The Authority has specifically held that "[i]f a party fails to raise a defense before the judge, then the judge errs by resolving the case on the basis of that defense." United States Dep't of Veterans Affairs, 56 FLRA 696, 698 (2000) (Veterans Affairs). Accordingly, we find that the Judge erred in this case by dismissing the complaint on a basis that was not raised by the Respondent.

B.     Status of the EEO Investigators as Agency Representatives

      We agree with the Judge and the General Counsel that the EEO investigators were representatives of the Respondent within the meaning of § 7114(a)(2)(A) of the Statute. In Defense Depot Tracy, the Authority [ v59 p880 ] found that a contractor performing the role of an Employee Assistance Program Counselor was "functioning as the `representative of the agency,' within the meaning of § 7114(a)(2)(A) of the Statute when [the contractor] conducted the orientation meetings with the Respondent's employees[,]" as part of its Employee Assistance Program (EAP). 39 FLRA at 1013.

      Also, the Supreme Court in NASA v. FLRA, 527 U.S. 229 (1999), in holding that an inspector general can constitute a representative of an agency under § 7114(a)(2)(B), noted that "[a]s an organization, an agency must rely on a variety of representatives to carry out its functions and, though acting in different capacities, each may be acting for, and on behalf of, the agency." Id. at 236. As relevant here, the court found that § 7114(a)(2)(B) was "not limited to agency investigators representing an `entity' that collectively bargains with the employee's union." Id. at 237. The Court also affirmed as consistent with the Statute the Authority's rationale that a contrary finding -- that § 7114(a)(2)(B) did not encompass investigations by an inspector general -- "might erode the right by encouraging the use of investigative conduits outside the employee's bargaining unit, and would otherwise frustrate Congress' apparent policy of protecting certain federal employees when they are examined and justifiably fear disciplinary action." Id. at 234.

      In terms of the application of these principles to the contract investigators in this case, we find that the investigators were agency representatives in conducting these investigations at the bequest and on behalf of the Respondent in investigating the EEO complaints. We note that the "Letter of Authorization for Investigative Services" addressed to all SSA employees was signed by the Respondent's OCREO Director and directed employees to "provide . . . complete cooperation since the investigator has been given authority to conduct such investigation, inquiry or review into matters raised in an EEO complaint." Joint Exhibit 6b. The letter further states that "information/documentation collected by the investigator will be done in accordance with contract requirements[,]" and that the "purpose of th[is] investigation is to gather facts upon which to base a determination as to whether the Agency has violated an EEO statute, and if a violation is found, to have sufficient factual information from which to fashion an appropriate remedy." Id.

      On this basis, we find that contrary to the assertions of the Respondent, its relationship with these investigators is not "tenuous" as control and direction of these investigators emanate from the contract between the Southwind Corporation and the Respondent. The Respondent had an official obligation to investigate these EEO complaints, and the fact that a contractor, rather than an agency employee, was designated by the agency to conduct these investigations does not diminish the relationship with the Respondent. As in NASA v. FLRA, we have the same concerns here that finding that these contract investigators are not agency representatives would encourage agencies to contract out of as much as of the EEO complaint process to avoid granting unions their statutory right to representation at formal discussions.

      Thus, we find that consistent with Defense Depot Tracy and NASA v. FLRA, the contract investigators were agency representatives within the meaning of § 7114(a)(2)(A).

C.     The Investigatory Interviews Concerned a "Grievance"

      We reject the Respondent's exception to the Judge's conclusion that these interviews involving EEO complaints concerned a grievance within the meaning of § 7114(a)(2)(A) of the Statute. The Authority has already addressed and resolved this issue. As noted recently in United States, Dep't of the Air Force, Luke Air Force Base, Arizona, 58 FLRA 528, 533 (2003) (Luke II) (Member Armendariz concurring and Chairman Cabaniss dissenting), the Authority has "revisited and thoroughly reviewed the issue of whether EEO complaints pursued through a statutory appeals procedure are grievances under § 7114(a)(2)(A) and decided to adhere to its view that the scope of the term `grievance' encompasses such complaints, based on the express language of the Statute, legislative history of the Statute, and the purpose of the Statute's provision for union representation under § 7114(a)(2)(A)." Id. (citing Dover, 57 FLRA at 308-09). As relevant here, in Luke II, the Authority reaffirmed its holdings in Dover, that were affirmed by the D.C. Circuit Court of Appeals in Dover AFB v. FLRA, that the "broad definition of `grievance' under the Statute encompasses complaints filed under a negotiated grievance procedure as well as complaints filed under alternative statutory procedures of the EEOC." Id. (footnote omitted).

      Thus, for the reasons set forth in Luke II and Dover, we reject the Respondent's exception in this regard. The Respondent relies on the Ninth Circuit's decision in Luke AFB v. FLRA, which has been rejected by the Authority, and the Respondent presents no new arguments that merit reconsideration of or departure from the Authority's view. [n3] 

      In conclusion, in these circumstances, we find that the Respondent committed unfair labor practices alleged in the complaint by failing to provide under § 7114(a)(2)(A) the Union notice of, and an opportunity to participate in, the formal discussions with Barry and Houba-Kane in violation of § 7116(a)(1) and (8) of the Statute. [ v59 p881 ]

D.     Appropriate Official to Sign the Notice

      We agree with the Respondent that the Judge erred in ordering that the notice should be signed by the OCREO Director. The Authority typically directs the posting of a notice signed by the highest official of the activity responsible for the violation. See Veterans Affairs, 56 FLRA at 699. The Authority has stated that, by directing the highest official to sign the notice, a respondent "signifies that the Respondent acknowledges its obligations under the Statute and intends to comply with those obligations." Id. (citing United States Dep't of Veterans Affairs, Wash., D.C., 48 FLRA 1400, 1402 (1994)).

      In Veterans Affairs, the Authority concluded that since there was no allegation that the violations that occurred were the result of the respondent's nationwide EEO policy, there was no basis for finding that the individual in charge of administering the respondent's EEO program nationwide was the highest official of the activity responsible for the violation. Veterans Affairs, 56 FLRA at 699. In this respect, consistent with precedent, the Authority found that the appropriate individual to sign the notice was the highest management official at the location where the violations occurred. The Authority further noted that such a "management official can most effectively reassure employees that the Respondent intends to comply with its obligations under the Statute." Id. Also, the Authority directed the respondent to distribute a copy of the notice to the head of the EEO program in order to ensure that the head of the EEO program was made aware of the violations.

      In this case, we find that the Respondent committed unfair labor practices alleged in the complaint by failing to provide the Union notice of, and an opportunity to participate in, the formal discussions with two employees in Respondent's Somerville, Massachusetts Hearing Office. Consistent with Veterans Affairs, we find that the notice should be signed by the highest management official at the location where the violations occurred, namely the Hearing Office Chief Administrative Law Judge for the Somerville office. Also, in keeping with Veterans Affairs, we direct the Respondent to distribute a copy of the notice to all contract investigators and the OCREO Director as head of the EEO Program to ensure that he is made aware of these violations.

VIII.     Order

      Pursuant to section 2423.41 of our Regulations and § 7118 of the Federal Service Labor-Management Relations Statute, the Social Security Administration, Office of Hearings and Appeals, Boston Regional Office, Boston, Massachusetts, shall:

      1.     Cease and desist from:

           (a)     Conducting formal discussions with bargaining unit employees represented by the American Federation of Government Employees, Local 1164, AFL-CIO, concerning any grievance or any personnel policy or practices or other general condition of employment, including investigatory interviews in connection with formal EEO complaints, without affording the Union an opportunity to be represented at the formal discussions.

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

      2.     Take the following affirmative actions in order to effectuate the purposes of the Statute:

           (a)      Notify all persons, in writing, including independent contractors and subcontractors, authorized to investigate formal EEO complaints on behalf of the Respondent, of the right of the American Federation of Government Employees, Local 1164, AFL-CIO, to notice and an opportunity to attend interviews held with bargaining unit employees as required by the Statute.

           (b)      Post at facilities in all offices, in the Office of Hearings and Appeals, Boston Region, and in all offices of the Social Security Administration, Boston, Massachusetts, copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt, such forms shall be signed by Hearing Office Chief Administrative Law Judge for the Somerville Office of Hearings and Appeals, and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken to ensure that these Notices are not altered, defaced, or covered by any other material.

           (c)      Distribute a copy of the Notice to the head of the EEO program.

           (d)      Pursuant to § 2423.41(e) of the Authority's Regulations, notify the Regional Director of the Boston Region, Federal Labor Relations Authority, 99 Summer Street, Suite 1500, Boston, MA 02110, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply. [ v59 p882 ]


NOTICE TO ALL EMPLOYEES
POSTED BY ORDER OF THE
FEDERAL LABOR RELATIONS AUTHORITY

The Federal Labor Relations Authority has found that the Social Security Administration, Office of Hearings and Appeals, Boston Regional Office, Boston, Massachusetts, violated the Federal Service Labor-Management Relations Statute and has ordered us to post and abide by this notice.

WE HEREBY NOTIFY EMPLOYEES THAT:

WE WILL NOT conduct formal discussions with bargaining unit employees represented by the American Federation of Government Employees, Local 1164, AFL-CIO, concerning any grievance or any personnel policy or practices or other general condition of employment, including investigatory interviews in connection with formal EEO complaints, without affording the Union an opportunity to be represented at the formal discussions.

WE WILL notify all persons, in writing, including independent contractors and subcontractors, authorized to investigate formal EEO complaints on behalf of the Respondent, of the right of the American Federation of Government Employees, Local 1164, AFL-CIO, to notice and an opportunity to attend interviews held with bargaining unit employees as required by the Statute.

WE WILL NOT, in any like or related manner, interfere with, restrain, or coerce employees in the exercise of the rights assured by the Federal Service Labor-Management Relations Statute.

      ______________________
(Activity)

Date:_________      By:_______________________
      (Signature) (Title)

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, Boston Regional Office, 99 Summer Street, Suite 1500, Boston, MA 02110 and whose phone number is: (617) 424-5730.


Dissenting Opinion of Chairman Cabaniss:

      I write separately to note that, consistent with my dissent in Dover, 57 FLRA at 312-14, I would find that matters at issue here do not constitute a "grievance" for the purposes of § 7117(a)(2)(A) of the Statute. Consequently, I would dismiss the complaints on that basis.


File 1: Authority's Decision in 59 FLRA No. 160 and Opinion of Chairman Cabaniss
File 2: ALJ's Decision


Footnote # 1 for 59 FLRA No. 160 - Authority's Decision

   Chairman Cabaniss's dissenting opinion is set forth at the end of this decision.


Footnote # 2 for 59 FLRA No. 160 - Authority's Decision

   We note that in finding that this interview was not formal, we do not rely, as the Respondent does, on SSA, NY Region. As the General Counsel correctly notes, the Authority stated in Luke I that it would no longer follow SSA, NY Region to the extent that it "implies that a facilitated discussion in general, . . . can never be `formal' under § 7114(a)(2)(A) of the Statute[.]" Luke I, 54 FLRA at 729. The Authority further stated that the Union's representation right under the Statute "is not diminished when the discussion between employees and agency representatives is conducted in a nonconfrontational manner through a neutral third party." Id. We note that unlike the instant case, as discussed infra, the Authority in Luke I declined to address the status of the facilitator as an agency representative under § 7114(a)(2)(A) since the agency conceded that it was represented at all times by a JAG attorney during these meetings.


Footnote # 3 for 59 FLRA No. 160 - Authority's Decision

   Member Armendariz notes, consistent with his concurrence in Luke II, that there is no evidence or claim by the Respondent that the Union waived its representation rights to such interviews based on the exclusion of EEO claims from coverage under the negotiated grievance procedure. In fact, according to the Respondent, in this case the parties have not excluded EEO claims from the coverage of the parties' negotiated grievance procedures. See Exceptions at 6. Also, consistent with his concurrence in Luke II, Member Armendariz notes that there is no evidence of direct conflict between a union's institutional rights and an employee's right to confidentiality. In this case, the record reflects that both Barry and Houba-Kane apprised and discussed with the Union their interviews with the contract investigators. See Judge's Decision at 4-5. As such, there is no evidence that these employees would have objected to the presence of the Union