16:1049(137)CA AFGE, LOCAL 3399 VS VA -- 1984 FLRAdec CA
[ v16 p1049 ]
The decision of the Authority follows:
16 FLRA NO. 137
HARRY S. TRUMAN MEMORIAL VETERANS HOSPITAL COLUMBIA, MISSOURI Respondent and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 3399 Charging Party Case No. 7-CA-20125
The Administrative Law Judge issued the attached Decision in the above-entitled proceeding, finding that the Respondent had engaged in certain unfair labor practices alleged in the amended complaint and recommending that it be ordered to cease and desist therefrom and take certain affirmative action. The Judge found that the Respondent had not engaged in other unfair labor practices alleged in the amended complaint and recommended dismissal of those portions of the amended complaint. Thereafter, the Respondent and the General Counsel filed exceptions, and the Respondent filed an opposition to the General Counsel's exceptions. 1
Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor - Management Relations Statute (the Statute), the Authority has reviewed the rulings of the Judge made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. Upon consideration of the Judge's Decision and the entire record, the Authority hereby adopts the Judge's findings, conclusions 2 and recommendations, as modified herein. [ v16 p1049 ]
The amended complaint alleges that Respondent, Harry S. Truman Memorial Veterans Hospital, Columbia, Missouri, violated section 7116(a)(1),(5) and (8) of the Statute 3 by failing to afford the Charging Party, American Federation of Government Employees, Local 3399, AFL - CIO, the opportunity to be represented at formal discussions within the meaning of section 7114(a)(2)(A) of the Statute, 4 with respect to meetings held on or about January 26, 1982 and February 2, 1982, respectively. The Charging Party is the exclusive representative of units of nonsupervisory, nonprofessional employees of the Respondent.
The Authority adopts the Judge's conclusion that the January 26 meeting was not a formal discussion within the meaning of section 7114(a)(2)(A) of the Statute. Internal Revenue Service, Fresno Service Center, Fresno, California v. Federal Labor Relations Authority, 706 F.2d 1019 (9th Cir. 1983), reversing the Authority's decision in Internal Revenue Service, Fresno Service Center, Fresno, California, 7 FLRA 371 (1981). See also Bureau of Government Financial Operations, Headquarters, [ v16 p1050 ] 15 FLRA No. 87 (1984), at note 9 and accompanying text (Member Haughton dissenting in part). However, contrary to the Judge's conclusion in regard to the subsequent meeting, the Authority finds such meeting also was not a formal discussion. The record indicates that the discussion was initiated by a first-line supervisor and that no other management representatives attended; the meeting was held in the first-line supervisor's office, and was called in an impromptu manner without formal advance written notice; the meeting lasted only a few moments; and there was no evidence of a formal agenda or that the comments of those in attendance were noted or transcribed. Thus, the Authority concludes that the meeting was not "formal" in nature. See Department of Health and Human Services, Social Security Administration, Bureau of Field Operations, San Francisco, California, 10 FLRA 115 (1982); Defense Logistics Agency, Defense Depot Tracy, Tracy, California, 14 FLRA No. 78 (1984); Department of Health and Human Services, Social Security Administration, San Francisco Region, San Francisco, California, 14 FLRA No. 96 (1984). In so concluding, it is unnecessary to pass upon the remainder of the Judge's analysis with respect to the second meeting, and the Authority does not adopt that portion of the Judge's decision.
Therefore, the complaint shall be dismissed in its entirety.
IT IS ORDERED that the complaint in Case No. 7-CA-20125 be, and it hereby is, dismissed.
Issued, Washington, D.C. December 24, 1984 Henry B. Frazier III, Acting Chairman Ronald W. Haughton, Member FEDERAL LABOR RELATIONS AUTHORITY
[ v16 p1051 ]
HARRY S. TRUMAN MEMORIAL VETERANS HOSPITAL COLUMBIA, MISSOURI Respondent and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 3399 Charging Party Case No. 7-CA-20125 K. Sue Meyer, Esquire For the Respondent Mr. Eugene Martin For the Charging Party James J. Gonzales, Esquire For the General Counsel Before: GARVIN LEE OLIVER Administrative Law Judge
This decision concerns an unfair practice complaint issued by the Regional Director, Region Seven, Federal Labor Relations Authority, Denver, Colorado against the Harry S. Truman Memorial Veterans Hospital, Columbia, Missouri (Respondent), based on a charge filed by the American Federation of Government Employees, AFL - CIO, Local 3399 (Charging Party or Union). The amended complaint alleged, in substance, that Respondent violated Section 7116(a)(1), (5), and (8) of the Federal Service Labor - Management [ v16 p1052 ] Relations Statute, 5 U.S.C. 7101 et seq. (the Statute), by conducting formal discussions within the meaning of section 7114(a)(2)(A) on or about January 26, 1982 and February 2, 1982 without providing the Union an opportunity to be present. Respondent moved to strike the allegation as to the February 2, 1982 meeting on the basis that it occurred more than six months before the filing of the charge and denied any violation of the Statute.
A hearing was held in this matter in Columbia, Missouri. The Respondent, Charging Party, and the General Counsel were represented and afforded full opportunity to be heard, adduce relevant evidence, examine and cross-examine witnesses, and file post-hearing briefs. The Respondent and General Counsel filed excellent briefs. I have adopted their proposed findings and conclusions where supported by the record as a whole. Based on the entire record herein, 5 including my observation of the witnesses and their demeanor, the exhibits, other relevant evidence adduced at the hearing, and the briefs, I make the following findings of fact, conclusions of law, and recommendations.
A. January 26 Meeting.
On approximately November 20, 1981, unit employee Tommy Sanders filed with Virginia Singleton, EEO Counselor, an informal EEO complaint against supervisor William Markel regarding a disciplinary admonishment which Markel had issued to Sanders for allegedly failing to perform patient care duties. (Tr. 22, 24, 48-49; Joint Exhibit 1, paragraph 18). During Ms. Singleton's factfinding and attempts to informally resolve the complaint, she spoke to Mr. Markel and his personal representative to clear up some questions she had. During the discussion, Markel mentioned to Ms. Singleton, on more than one occasion, that he would be willing to meet with Sanders and his representative to discuss an informal resolution. When Ms. Singleton attempted to set up the meeting, Sanders and his personal representative requested that Markel indicate his willingness to meet with them in writing. Markel did so on January 13, 1982 by memorandum to Singleton. (G.C. Exh. 10; Tr. 50-51).
Thereafter, Singleton made appropriate arrangements and notified Sanders' personal representative, Stefan Denson, of the meeting to be [ v16 p1053 ] held on January 26, 1982. 6 She also sent Mr. Markel a memorandum dated January 20, 1982 which stated, in part, as follows:
Please be advised that a tentative date of January 26, 1982, at 3:00 p.m. has been chosen to meet with you in an attempt to resolve the Informal EEO case of Mr. Tommie Sanders, Respiratory Therapist. From this meeting, it is hoped that recommendations for resolution of this situation can be made. Present, in addition to you and I, will be Mr. Sanders, the complainant, and Mr. Stefan Denson, EEO representative for Mr. Sanders. Should you wish to have a representative present, you are within your rights to do so. (G.C. Exh. 11).
Pursuant to established Agency EEO procedures, Sanders had chosen Stefan Denson to be his personal representative. (Tr. 25, 74; G.C. Exh. 8, par. 2.b). Denson, who had once been the Union's chief steward, had been terminated from employment with the Respondent on December 18, 1981. However, after his termination, he was appointed a special representative of the Union by the Union president. In that capacity, he assisted in some negotiations and wrote up some grievances and unfair labor practices. (Tr. 74, 77-78).
Prior to the meeting, Denson, as Sanders' personal representative, told Singleton on two separate occasions that the Union should be notified of the meeting scheduled for January 26. (Tr. 69-71). Singleton, however, based upon advice she received from Respondent's [ v16 p1054 ] personnel office, 7 did not notify the Union president, vice-president, or any steward in advance of this meeting as a representative of the Union. (Tr. 53-54; 68-70; 86-88). In matters concerning formal discussions between management and unit employees, the practice had been that Respondent would notify the Union's established point of contact, Union president Carter. (Tr. 75, 82-83). The unrebutted evidence shows that the Union, qua Union, learned of the January 26 meeting only after it was over. (Tr. 80).
On January 26, as planned, Sanders and his representative, Denson, met with EEO Counselor Singleton, Markel, and Markel's representative, Daniel Winship, who is Respondent's chief of staff, in Winship's office, to discuss and try to resolve Sanders' informal EEO complaint. (Tr. 27, 55). All parties attended voluntarily. Singleton formally introduced each participant and identified their respective roles. No one was identified as a representative of the Union. Singleton summarized her factfinding. She noted an alleged apparent disparity of treatment between Sanders, a black employee, an caucasian employees, and suggested that Markel remove the admonishment he had issued to Sanders. Markel attempted to question Sanders as to whether Sanders actually had failed to perform required duties, but ceased such questioning when Singleton and Denson stated that the relevant issue involved the fairness of Sanders' punishment rather than his alleged misconduct. Everyone attending spoke at one time or another, although Sanders and Winship said very little. Sanders' complaint was not resolved. Markel said he would think over what had been discussed and get back with Singleton. Singleton ended the meeting after asking if there were any other questions. She gave Markel a deadline within which to submit in writing [ v16 p1055 ] a proposed informal resolution of the complaint. 8 (Tr. 27, 38, 55; Joint Exh. 1, par. 19(a)).
On or about February 3, 1982, Markel submitted a proposed informal resolution of Sanders' complaint to Singleton and asked Singleton to give it to Sanders for his approval. Markel proposed the following:
Mr. Sanders' failure to carry out his assigned duties on September 16, 1981 was detrimental to patient care. However, at this time Mr. Sanders' performance is at a satisfactory level and I elect to remove the admonishment dated November 4, 1981. This letter will act as a written counseling for Mr. Sanders' failure to carry out assigned duties as mentioned above.
By Mr. Sanders' realization that racial discrimination played no part in this action and by removing the admonishment, I sincerely hope that this will informally settle his EEO complaint.
Ms. Singleton gave the proposed resolution to Sanders' representative, Denson, and asked for a written reply within two days. Sanders rejected the proposed resolution. Ms. Singleton ended the informal complaint process the same day she received Sanders' written refusal to accept Markel's proposed resolution. This ended Singleton's role in the EEO complaint process. (Tr. 41, 55-56, 64-65; G.C. Exh. 12). [ v16 p1056 ]
B. February 8, 1982 Meeting 9
On February 8, 1982, at approximately 4:00 p.m., as Mr. Sanders was walking toward the respiratory therapy office to report to work, Markel met Sanders in the hall and asked Sanders to step into Markel's office so Markel could talk to him about something. With only Markel and Sanders present, Markel showed Sanders the letter of admonishment, which Markel had issued to Sanders. Markel said he had been instructed to tear up the admonishment, and then tore it up. Markel said he had not been discriminatory when he had given Sanders the admonishment, but had made a mistake. Markel then handed Sanders a letter of written counseling which he had already prepared, signed, and dated February 8. The letter provided, in part, as follows:
I have elected to remove the admonishment from your OPF. Personnel Service will be sent a copy of this letter so they may return the OPF copy of the admonishment to you.
This letter will also serve as written counseling for your failure to carry out assigned duties on September 16, 1981.
Markel said nothing further. Sanders said nothing at all during the meeting. This meeting was very short. 10 (Tr. 28-30, 42-43, Resp. Exh. 1).
Sanders did not normally report to his supervisor, Markel. He usually reported directly to the lead respiratory technician. Such a meeting in Markel's office was very rare for Sanders and has occurred only four times in 1 1/2 years. (Tr. 29-30). [ v16 p1057 ]
Respondent did not provide the Union advance notice of the February 8, 1982 meeting. Sanders told Stefan Denson of the meeting about two days later. Sanders was a Union steward at the time of both the January 26 and February 8, 1982 meetings. (Tr. 32-33). As noted above, Denson was a special representative of the Union.
Negotiations regarding Article XI, Section 11 of the Parties' Local Collective Bargaining Agreement.
On September 12, 1979, during negotiations over the parties local collective bargaining agreement, the parties discussed what is now Article XI, Section 11 of that agreement. 11 (G.C. Exh. No. 5, 16). Ms. Ratliff, former EEO Counselor and then Union Vice President, acted as spokesperson for the Union. (Tr. 173, 175, 224, 229, 230, 238). There was some discussion and minor changes regarding subsection A. There was only a brief discussion with respect to subsection B. Ms. Ratliff explained that subsection A referred to outside groups coming in and subsection B pertained to an employee utilizing the EEO complaint process. (Tr. 177). The alternate management spokesperson, Ms. Korschgen, paraphrased Ms. Ratliff's comments and asked if Ms. Ratliff meant that when an employee uses the EEO complaint route, the Union would [ v16 p1058 ] not be involved. (Tr. 177, 198-199, 229-230). Ms. Ratliff said that was correct. The parties then initialed the proposal. 12 (Tr. 177, 230). [ v16 p1059 ]
In determining whether Respondent violated section 7116(a)(1), (5), and (8) 13 of the Statute by conducting formal discussions within the [ v16 p1060 ] meaning of section 7114(a)(2)(A) 14 without providing the Union an opportunity to be present, several issues are presented. These are (1) whether the January 26 meeting was a formal discussion within the meaning of section 7114(a)(2)(A); (2) whether the Union waived any right to be represented at the January 26 meeting under the terms of the parties' local collective bargaining agreement; (3) whether the Union had a opportunity to be represented at the January 26 meeting by virtue of the fact that a Union special representative represented the employee at the meeting; (4) whether the allegation as to the February 8, 1982 meeting should be dismissed pursuant to section 7118(a)(4)(A) and (B) 15 [ v16 p1061 ] because it is based on an alleged unfair labor practice which occurred more than six months before the filing of the allegation; and (5) if not, whether the February 8, 1982 meeting was a formal discussion within the meaning of section of 7114(a)(2)(A).
The January 26, 1982 meeting was not a formal discussion within the meaning of section 7114(a)(2)(A) of the Statute.
It is clear that at the January 26, 1982 meeting there was a "discussion" and, under Authority precedent, that a meeting to attempt informal resolution of an individual employee's complaint of discrimination concerns a "grievance" within the meaning of section 7114(a)(2)(A). Internal Revenue Service, Fresno Service Center, Fresno, California, 7 FLRA No. 54 (1981). The question of whether a meeting is "formal" in nature must take into consideration and weigh a variety of factors such as:
1) whether the individual who held the discussion is a first-level supervisor or higher in the management hierarchy;
2) whether any other management representatives attended;
3) where the individual meeting took place (i.e., in the supervisor's office, at each employee's desk, or elsewhere);
4) how long the meeting lasted;
5) how the meeting was called (i.e., with formal advance written notice or more spontaneously and informally);
6) whether a formal agenda was established for the meeting;
7) whether each employee's attendance was mandatory, or
8) the manner in which the meeting was conducted (i.e., whether the employee's identify and comments were noted or transcribed). 16 [ v16 p1062 ]
The factors are applied to the present case, as follows:
1) The individual who held the discussion, Virginia Singleton, was neither a supervisor nor a management official. Ms. Singleton conducted the meeting as an EEO Counselor. While appointed by management, she was not functioning as a representative of management. Her function was to serve as a bridge between the complainant and management and attempt to impartially resolve the matter in an informal manner.
42 U.S.C.A. 2000 e-16 (a) and (b) prohibits discriminatory practices in the Federal Government; grants authority to the Equal Employment Opportunity Commission (EEOC) to enforce the policy of nondiscrimination in the Federal Government; and instructs EEOC to issue such rules and regulations necessary to carry out its responsibilities under this section. EEOC has issued regulations requiring Federal agencies to establish programs for equal opportunity in employment at 29 C.F.R. 1613.201 et sq. EEOC requires agencies to "(P)rovide for the prompt, fair, and impartial consideration and disposition of complaints involving issues of discrimination on grounds of race, color, religion, sex or natural origin." 29 C.F.R. 1613.203(k) (1982). EEOC requires agencies to attempt to resolve complaints of discrimination on an informal basis according to established EEOC guidelines before a formal complaint of discrimination can be filed. 29 C.F.R. 1613.204 (d)(4) 1613.213 and 1613.214. In conformance with EEOC's requirements for pre-complaint processing, the Office of Personnel Management has issued regulations, applicable to all covered Federal agencies, prescribing requirements for processing EEO complaints within Federal EEOC programs. Federal Personnel Manual, Chapter 713, Appendix B. (Resp. Exh 2). Respondent has issued agency regulations governing EEO complaints as required by both the EEOC and the Office of Personnel Management. VA Personnel Policy Manual, MP-5 Part 1, Chapter 713, Section B. (G.C. Exh 8).
Applicable regulations require the agency to designate EEO Counselors to investigate and seek fair and impartial resolution of employee informal EEO complaints. 29 C.F.R. 1613.203 (k), 1613.204 (d)(4). Agencies are required to give EEO Counselors full cooperation and cannot restrain, coerce, interfere with, discriminate or take reprisals against EEO Counselors in the performance of their duties. 29 C.F.R. 1613.213(b) and (c); Federal Personnel Manual, Chapter 713, Appendix B. B-2.g; VA Personnel Policy Manual, MP-5, Part 1, Chapter 713, Section B. 4.b. (Resp. Exh 2; G.C. Exh 8). Agencies must require EEO Counselors "to make whatever inquiry he or she believes necessary into the matter; (and) to seek a resolution of the matter on an informal basis." 29 C.F.R. 1613.213(a); Federal Personnel Manual, Chapter 713, Appendix B., B-2 (b)(1) and (2); VA Personnel Policy Manual, MP-5, Part 1, Chapter [ v16 p1063 ] 713, Section B.4.b. (Resp. Exh 2; G.C. Exh 8). The applicable regulations, then, permit EEO Counselors extremely wide latitude in attempting to resolve EEO complaints filed with them. Bringing the complainant and the alleged discriminating official together to try to resolve a complaint informally is a customary procedure used by the EEO Counselor.
In summary, the person in control of the January 26 meeting was required to impartially and fairly attempt resolution of the employee's complaint, and had no authority to take any personnel action regarding the complaint. 17 Moreover, management was precluded by law from interfering with the Counselor's impartial attempted resolution. While two supervisors did attend the meeting, they attended as participants and not as the individuals who "held" the discussion. The one time that management representative Markel even arguably attempted to control the meeting (when Markel asked Sanders a question about his conduct), Ms. Singleton (and Denson) told him that his question was irrelevant and he refrained from any further questioning.
2) As noted above, two management representatives attended the meeting, but not in the normal course of their supervisory duties. Markel attended as the alleged discriminating official. Far from attending in a supervisory capacity, he attended as the accused, and the one to whom Ms. Singleton proposed that he take some remedial action. Dr. Winship, although a high official, attended as Markel's representative and participated very little in the discussion.
3) The meeting took place in Dr. Winship's office, but the record is devoid of evidence regarding how or why this site was selected. Under the circumstances, it is as reasonable to conclude that the Chief of Staff's office was selected because it would have enough room to accommodate five people, as to assume, for example, that it was selected to intimidate or somehow influence the employee.
4) The record contains no evidence regarding the length of the meeting. Evidence regarding the discussion reflects that it was long enough for everyone to be able to participate.
5) The EEO Counselor provided supervisor Markel advance written notice of the meeting. At the request of the complainant and his personal representative, the supervisor had provided the EEO Counselor a prior memorandum regarding his willingness to meet with the complainant. [ v16 p1064 ]
6) There is no evidence of a formal agenda being established for the meeting. The evidence does suggests that an orderly format was followed inasmuch as there occurred the introduction of participants, a summary of factfinding, opportunity for all participants to discuss possible means of resolution, and a deadline for proposals to be submitted.
7) All participants attended the meeting voluntarily.
8) There was no evidence regarding whether Sanders' comments were noted or transcribed. The employee's identity was known to all the participants.
Upon consideration of all of the factors surrounding the meeting, it is concluded, that although the meeting conducted by the EEO Counselor on January 26, 1982 was "formal" in nature, it was not a formal discussion between agency representatives and employees in the unit within the meaning of section 7114(a)(2)(A) of the Statute. It was arranged by the EEO Counselor pursuant to a statutory and regulatory framework for the investigation and resolution of discrimination complaints completely apart from the Federal Service Labor - Management Relations Statute and the negotiated agreement. 18 The Statute affords the Union no right to be [ v16 p1065 ] present during such a meeting. 19 This is in contrast to the clear statutory right of the exclusive representative to be present during formal discussions of a grievance initiated through the negotiated grievance procedure as provided by sections 7114(a)(2)(A) and 7121(b)(3)(B) 20 of the Statute. See Office of Program Operations, Field Operations, Social Security Administration, San Francisco Region, 10 FLRA No. 36 (1982); Department of the Air Force, San Antonio Real Property Maintenance Agency, San Antonio Air Force Station, Texas, 6-CA-732, ALJDR No. 1 (1981).
The General Counsel relies on Internal Revenue Service, Fresno, California, 7 FLRA No. 54 (1981). The Authority held, in "the specific circumstances" of that case, that a meeting to attempt informal resolution of an employee's pending complaint of discrimination attended by an EEO Counselor, EEO Officer, the employee, her representative (Union steward), and a management branch chief was a formal discussion of a grievance within the meaning of section 7114(a)(2)(A). There are significant factual differences between IRS, Fresno and the instant case. In IRS, Fresno, although the meeting was called to discuss an issue raised by an employee in an EEO complaint, the person who called and conducted the meeting was the Chief of the Computer Branch, not an EEO Counselor. Moreover, the supervisor ordered the employee to attend and gave her no information regarding any right she might have to request that a personal representative or an EEO Counselor attend with her. [ v16 p1066 ]
The Supervisor "chaired" the meeting and asked the employee a number of questions. When the union steward attempted to answer some questions, the supervisor told the steward that the supervisor wanted answers from the employee, not the union steward. Under these facts, and notwithstanding the agency's attempt to characterize the meeting as the first step in the informal EEO complaint process, it is clear that the decision of the authority was predicated on the specific circumstances of the case and applies only in circumstances where such a meeting conducted by management falls within the definition of "formal discussion" under the Statute. The decision of the Authority did not conclude that all EEO discrimination complaint meetings are automatically within the meeting of section 7114(a)(2)(A) of the Statute. Rather, the decision specifically noted that "the Authority holds only that in the 'specific circumstances of this case,' the meeting was a formal discussion within the meaning of section 7114(a)(2)(A) of the Statute." The facts concerning the January 26, 1982 meeting, however, as discussed above, are clearly different and warrant a different conclusion.
In view of the foregoing, it is unnecessary to reach the other issues posed concerning the January 26, 1982 meeting. 21 It is concluded that Respondent did not violate section 7116(a)(1), (5), and (8) of the Statute, as alleged, by conducting a meeting with one or more employees on January 26, 1982 without providing the Union an opportunity to be present.
The Complaint was Properly Amended to Include the Allegation of a Formal Meeting on February 8, 1982.
As noted, counsel for the General Counsel was permitted to amend the complaint at the hearing to include the allegation that Respondent, through its agent Markel, on or about February 2, 1982, conducted a [ v16 p1067 ] meeting in the absence of a Union representative, with one or more unit employees concerning grievances or general conditions of employment, without providing notice to the Union and affording an opportunity for the Union to be represented at this meeting. Respondent moves to strike this amendment, arguing that this allegation is a separate and different one from that alleged in the complaint; that Respondent has received no notice of any charge to the effect that Respondent may have conducted such a meeting on or about February 2, 1982; that this amendment comes more than six months after the date of the alleged violation; and that there was no concealment, as a Union steward, Mr. Tommy Sanders, and special representative, Stefan Denson, were aware of the meeting.
Both the original and first amended charges and original complaint alleged that Markel held a formal discussion or meeting "on or about January 26, 1982," without affording the Union advance notice of, or an opportunity to be represented at, such meeting. The amendment to the complaint alleged that a second formal discussion occurred "on or about February 2, 1982." The evidence adduced at the hearing, including that offered by Respondent, clearly shows a close relationship between the meetings on January 26 and February 8, 1982. Markel was alleged to be a key management participant in both discussions. Both discussions concerned the letter of admonishment issued by Markel to Sanders. I conclude that the original and amended charge, as well as the complaint, were timely filed, and that Respondent was properly and sufficiently notified of the nature and approximate date of Markel's conduct. It is also concluded that the amendment to the complaint did not raise a new and separate cause of action, or represent a substantial amendment to the nature of the litigation, and was not barred by section 7118(a)(4)(A). 22 The amendment was fully and fairly litigated at the hearing. No prejudice to Respondent was demonstrated.
The February 8, 1982 Meeting was a Formal Discussion within the Meaning of Section 7115(a)(2)(A).
As to the "formality" of the February 8, 1982 meeting under the Authority criteria, the person who held the discussion was the employee's first line supervisor. No other management representatives attended the meeting. The meeting occurred in Markel's office, where Sanders rarely [ v16 p1068 ] met with Markel. The meeting was brief. Markel made about three short remarks, tore up the previous admonishment, and handed Sanders a written counseling. Sanders did not say anything. The meeting was unscheduled, but not spontaneous. Sanders had no reason to believe that Markel was going to meet with him that day. Markel stopped Sanders on his way to report to work, asked Sanders to step into his office, and conducted the brief meeting. However, Markel had already prepared, in advance, a letter of counseling to replace the letter of admonishment previously issued. Thus, the serious purpose of the meeting was established in advance, and Sanders' ignorance of Markel's plan and purpose beforehand does not render the meeting a spontaneous one. There was no evidence of a formal agenda. Markel had obviously made a decision to change the discipline he had previously given Sanders, and he advised Sanders in this meeting of that decision. Sanders' attendance was mandatory. Sanders' identity was known to Markel. There is no evidence that Markel made any note of the meeting or transcribed his own comments. Upon consideration of these factors, and what was discussed, as discussed in greater detail below, I conclude that the meeting was "formal" under section 7114(a)(2)(A).
Respondent contends that this brief meeting between the supervisor and employee did not constitute a "discussion" under section 7114(a)(2)(A). It is clear that the supervisor did all the talking, and the employee did not say anything. However, the violation here involves section 7114(a)(2)(A), rather than section 7114(a)(2)(B), 23 and, [ v16 p1069 ] therefore, it is not necessary to show that Respondent examined the employee or asked him to give any explanation or defense of his actions. Compare United States Air Force, 2750th Air Base Wing, Headquarters, Air Force Logistics Command, Wright - Patterson Air Force Base, Ohio, 10 FLRA No. 23 (1982).
The lack of any actual conversation, debate, or argument between the parties at a meeting should not defeat the Union's right to be given notice and an opportunity to be represented at a formal meeting if a discussion of a grievance is otherwise reasonably foreseeable. I conclude that a discussion was reasonably foreseeable from all of the circumstances. Markel chose to again defend himself against Sanders' discrimination charge, but admitted to a mistake in apparently giving Sanders too severe a penalty of an admonishment. He presented Sanders with a letter of counseling which he had prepared and signed. There is no indication that Sanders was prevented from speaking or that comments on his part would have otherwise been inappropriate. Conceivably, either Sanders or a representative could have convinced Markel on this occasion to agree to a more favorable resolution of the matter. Thus, a discussion was reasonably foreseeable under all of the circumstances and could potentially have affected the disposition of the matter. 24
The next issue for determination i whether the meeting concerned a "grievance" within the meaning of section 7114(a)(2)(A). Although Sanders had not accepted Markel's earlier proposal to settle the EEO complaint by Markel's changing the written admonishment to a letter of counseling, Markel decided to make the change anyway. He did so and notified Sanders of this change at the February 8, 1982 meeting. It is clear that although the February 8, 1982 meeting between supervisor Markel and Sanders was not a part of the agency's EEO complaint process, 25 it was inextricably intertwined with Sanders' EEO complaint. Markel again took the opportunity to defend himself against Sanders' discrimination charge. He asserted that while he had not been discriminatory in giving Sanders the admonishment, he had made a mistake. [ v16 p1070 ] Since the meeting was inextricably intertwined with Sanders' EEO complaint, it is concluded that the meeting concerned a "grievance" within the meaning of section 7114(a)(2)(A). Internal Revenue Service, Fresno Service Center, Fresno, California, supra. Due to this close relationship, the meeting cannot be considered a highly personal, informal counseling session outside the scope of section 7114(a)(2)(A). See United States Air Force, 2750th Air Base Wing Headquarters, Air Force Logistics Command, Wright - Patterson Air Force Base, Ohio, supra., 10 FLRA at 106-107.
Inasmuch as the February 8, 1982 meeting was a formal discussion and concerned a grievance within the meaning of section 7114(a)(2)(A) of the Statute, the Union was entitled to be given the opportunity to be represented. Respondent violated section 7116(a)(1) and (8) of the Statute by denying the Union this opportunity. 26 Internal Revenue Service, Fresno, California, supra.
Based on the foregoing findings and conclusion, it is recommended that the Authority issue the following Order:
Pursuant to section 2423.29 of the Rules and Regulations of the Federal Labor Relations Authority and section 7118 of the Statute, the Authority hereby orders that the Harry S. Truman Memorial Veterans Hospital, Columbia, Missouri shall:
1. Cease and desist from:
(a) Failing to provide appropriate prior notification of, and opportunity to be represented at, a formal discussion between one or more representatives of the agency and one or more employees in the unit concerning a grievance.
(b) In any like or related manner failing or refusing to comply with any provision of the Federal Service Labor - Management Relations Statute. [ v16 p1071 ]
(c) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of rights assured by the Federal Service Labor - Management Relations Statute.
2. Take the following affirmative action in order to effectuate the purposes and policies of the Federal Service Labor - Management Relations Statute:
(a) Provide the American Federation of Government Employees, AFL - CIO, Local 3399, appropriate prior notification of and opportunity to be represented at, a formal discussion between one or more representatives of the agency and one or more employees in the unit concerning a grievance.
(b) Post at its facilities located in Columbia, Missouri copies of the attached Notice marked "Appendix" on forms to be furnished by the Authority. Upon receipt of such forms, they shall be signed by the Hospital Administrator, and shall be posted and maintained by him for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. The Hospital Administrator shall take reasonable steps to insure that such notices are not altered, defaced, or covered by any other material.
(c) Pursuant to 5 C.F.R. Section 2423.40 notify the Acting Regional Director, Region VII, Federal Labor Relations Authority, Denver, Colorado 80202, in writing, within 30 days from the date of this order, as to what steps have been taken to comply herewith.
3. IT IS FURTHER ORDERED that the Complaint, insofar as it alleges any violation with respect to the January 26, 1982 meeting, be, and it is hereby, dismissed.
GARVIN LEE OLIVER Administrative Law Judge Dated: December 15, 1982 Washington, D.C.
[ v16 p1072 ]
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR RELATIONS AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71 OF TITLE 5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT fail to provide the American Federation of Government Employees, AFL - CIO, Local 3399, appropriate prior notification of and opportunity to be represented at, a formal discussion between one or more representatives of the agency and one or more employees in the unit concerning a grievance.
WE WILL NOT in any like or related manner fail or refuse to comply with any provision of the Federal Service Labor - Management Relations Statute.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of rights assured by the Federal Service Labor - Management Relations Statute.
WE WILL provide to the American Federation of Government Employees, AFL - CIO, Local 3399, appropriate prior notification of and opportunity to be represented at, a formal discussion between one or more representatives of the agency and one or more employees in the unit concerning a grievance.
_________________________________ (Agency or Activity) Dated: __________________ BY: _________________________________ (Signature)
This Notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. [ v16 p1073 ]
If employees have any questions concerning this Notice or compliance with any of its provisions, they may communicate directly with the Acting Regional Director, Region VII, Federal Labor Relations Authority, whose address is: Rio Grande Building, 1531 Stout Street, Suite 301, Denver, Colorado 80202, and whose telephone is: (303) 837-5224. [ v16 p1074 ]
Footnote 1 The General Counsel's cross-exceptions were not timely filed and have not bee considered by the Authority.
Footnote 2 In view of the outcome, it is unnecessary to pass upon the Judge's conclusion concerning whether the complaint was properly amended to include an allegation regarding a meeting on or about February 2, 1982.
Footnote 3 Section 7116(a)(1), (5) and (8) provides: 7116. Unfair labor practices (a) For the purpose of this chapter, it shall be an unfair labor practice for an agency-- (1) to interfere with, restrain, or coerce any employee in the exercise by the employee of any right under this chapter; (5) to refuse to consult or negotiate in good faith with a labor organization as required by this chapter; (8) to otherwise fail or refuse to comply with any provision of this chapter.
Footnote 4 Section 7114(a)(2)(A) provides: 7114. Representation rights and duties (a)(2) An exclusive representative of an appropriate unit in an agency shall be given the opportunity to be represented at-- (A) any formal discussion between one or more representatives of the agency and one or more employees in the unit or their representatives concerning any grievance or any personnel policy or practices or other general condition of employment.
Footnote 5 The General Counsel's unopposed motion to correct the transcript is granted; the transcript is hereby corrected as set forth therein.
Footnote 6 Mr. Sanders and Mr. Denson both testified that Mr. Markel "set up" the meeting. (Tr. 26, 74). Inasmuch as they both admit, however, that they based their testimony not on direct evidence, but on statements made to them by Ms. Singleton, Ms. Singleton's own direct testimony as to who set up the meeting provides the more accurate account of this event. (Tr. 50, 51). Moreover, Ms. Singleton's testimony that she set up and was responsible for the January 26 meeting comports with Sanders' and Denson's other testimony and the stipulated facts regarding the actual conduct of the meeting. Ms. Singleton's testimony is also consistent with the uncontradicted evidence that EEO Counselors customarily possess independent authority in their investigation and resolution of informal EEO complaints. (Resp. Exh. 2, &. 7, 9-12; G.C. Exh. 8, #4; Tr, 58, 59, 61).
Footnote 7 In this regard, on or about January 14, 1982, Union president Carter alerted the Respondent's Hospital Director of the Authority's decision in Internal Revenue Service, Fresno Service Center, 7 FLRA No. 54 (1981) and emphasized the Union's desire to be present at formal discussions within the meaning of this decision. (Tr. 84; G.C. Exh. 13). It was not until January 29, three day following the January 26 meeting, that Respondent's Hospital Director Kurzejeski acknowledged receipt of Carter's January 14 memo. In his letter, the Hospital Director acknowledged awareness of the IRS, Fresno decision, supra, and quoted, without elaboration, Article XI, Section 11, section B of the collective bargaining agreement. (See fn. 7, infra). (Tr. 84; G.C. Exh. 14). Subsequently, on or about February 1, the Union again reasserted its right to be present at formal discussions within the meaning of 7 FLRA No. 54 and rejected the relevance of Article XI, Section 11. (Tr. 85; G.C. Exh. 15).
Footnote 8 Mr. Sanders characterized Markel's participation in the meeting as "conducting" the meeting. (Tr. 37). I agree with Respondent that Mr. Sanders' subsequent testimony, the stipulated facts, and Ms. Singleton's testimony demonstrates that EEO Counselor Singleton, in fact, had control of and conducted the meeting. Mr. Sanders admitted that Ms. Singleton began and ended the meeting. (Tr. 27, 38). The stipulation demonstrates that she summarized the facts involved in the complaint and suggested a means of resolution to Markel and Winship. (Joint exh. 1, par. 19(a)). When Markel did deviate from Ms. Singleton's purpose for the meeting, she so informed him and he abided by her instructions. Ms. Singleton, a non-supervisor, also had authority to give Markel a deadline within which to submit a written informal resolution. (Tr. 48, 55, 216). Indeed, Ms. Singleton testified, and the appropriate rules and regulations demonstrates, that she had wide discretion as to how to conduct an inquiry and attempt to resolve an informal EEO complaint before it reached the formal complaint stage. (Tr. 58-63, Resp. Exh. 2; G.C. Exh. 8).
Footnote 9 At the hearing, the General Counsel moved to amend the complaint so that it would include a meeting "on or about February 2, 1982." Based on the arguments made, the motion was granted. The parties were invited to address the applicability of the six month limitation in section 7118(a)(4)(A) of the Statute based on the developed record, and they have done so.
Footnote 10 Sanders testified that the meeting lasted about 10-15 minutes, although he also acknowledged that the meeting may have been shorter and "didn't last long at all." (Tr. 43). In view of Sanders' testimony as to what actually occurred at the meeting, I find that the meeting was considerably shorter and probably lasted no longer than five minutes.
Footnote 11 Article XI, Section 11 of the parties' current local collective bargaining agreement which became effective November 6, 1980, provides as follows: A. Management may from time to time meet with groups or associations other than the Union (i.e., NAACP, Urban League, LULAC, GI Forum, IMAGE, NOW, FEW, and FER) concerning EEO matters that affect Personnel practices and policies and other matters affecting working conditions of employees in the bargaining unit. Local 3399 shall be informed in advance, if known, and shall have an opportunity to be present at such meetings. B. This section does not apply to meetings with individual employees concerning an individual complaint of discrimination. (G.C. Exh. 5, p. 13).
Footnote 12 In making these findings, I credited the testimony of Respondent's witnesses, particularly Evelyn Korschgen, in essential respects whenever their testimony differed from that of the General Counsel's witnesses. Their testimony was consistent, inherently plausible, and supported by some documentary evidence. The testimony given by the Union president and area representative regarding the content of the negotiations and the origin of the proposals concerning Article XI, Section 11 is contradicted by documentary evidence and by one of General Counsel's other witnesses. Both the Union president and area representative testified to rather substantial discussions regarding the meaning of Article XI, Section 11. Their testimony is contradicted, however, by all of Respondent's witnesses and by the only documentary evidence regarding the negotiations, G.C. Exhibit 16, which indicates only minimal discussion of the contract provision. In addition, both the Union president and area representative testified and reasserted on cross examination, that Article XI, Section 11B had either been proposed by management's team or worked out together after much discussion between the two parties. (Tr. 96, 114, 120). Respondent's Exhibit 3, the Union's initial proposal submitted to Respondent, flatly disproves their assertions where its language in subsection B is identical to that included in Section 11B of the final agreement. (Tr. 178, 225, 226, 229, 236). Moreover, General Counsel's own witness, Mary Ratliff, admitted that the discussion over Article XI, Section 11 was brief and that subsection B was the Union's proposal. (Tr. 240, 242). The Union's position that Article XI, Section 11B meant only that the U nion would not require the hospital to notify them in advance when an employee meets with outside groups is inherently implausible. (Tr. 93, 115, 118, 119). Inasmuch as the groups referenced in subsection A were admittedly groups over which the hospital had no control, and with whom an individual had an absolute right without interference to contact, it makes no sense for the Union to propose or the hospital to agree that the hospital will not have to notify the Union in advance of such a meeting. (Tr. 97, 99). Carter, himself, admitted that he wasn't sure how that issue might have arisen from the wording of the proposals. (Tr. 99). Finally, Martin testified that "subsection B had been discussed and agreed to merely in order to address one of management's other concerns about the article -- official time." (Tr. 120). But Respondent demonstrated that subsection B was not a compromise at all between the Union and management. Subsection B was originally proposed by the Union and accepted in that form with little or no discussion. (Tr. 240, 242). Another Union explanation for subsection B was that the Union merely waived its right to be represented at meetings involving an EEO complaint between an individual employee and an EEO Counselor. (Tr. 93-94, 241). However, the language of the contract and its bargaining history do not support that interpretation. Neither subsection A or B mentions meetings between an individual employee and an EEO Counselor. Subsection A only talks about "management" meetings with "outside groups." In subsection B the Union changed one of the parties to the meetings from "outside groups" to "individual employees," but they did not change the other party to the meetings from "management" to "EEO Counselors." Ms. Ratliff, the main spokesperson for the Union for all of Article XI, had been an EEO Counselor for almost six years prior to the negotiations in question. Ms. Ratliff admitted that the meetings between an EEO Counselor, the alleged discriminatory official and the complainant are "always a step in the ... (Counselor's) ... procedure." (Tr. 175, 243). Ms. Ratliff's testimony that management narrowed the range of EEO meetings to include only meetings between EEO Counselors and employees is contradicted by the credited testimony of management's witnesses who were present during the negotiations and by the provision itself. Thus, the EEO meetings referred to in subsection B included meetings between the EEO Counselor, the supervisor, and the complainant, where they are part of the EEO complaint process, as well as just meetings between the EEO Counselor and employee. (G.C. Exh. 5; Tr. 177, 225-226, 230, 232).
Footnote 13 7116. Unfair labor practices (a) For the purpose of this chapter, it shall be an unfair labor practice for an agency-- (1) to interfere with, restrain, or coerce any employee in the exercise by the employee of any right under this chapter; (5) to refuse to consult or negotiate in good faith with a labor organization as required by this chapter; (8) to otherwise fail or refuse to comply with any provision of this chapter.
Footnote 14 7114. Representation rights and duties (a)(2) An exclusive representative of an appropriate unit in an agency shall be given the opportunity to be represented at-- (A) any formal discussion between one or more representatives of the agency and one of more employees in the unit or their representatives concerning any grievance or any personnel policy or practice or other general condition of employment(.)
Footnote 15 7118. Prevention of unfair labor practices (a)(4)(A) Except as provided in subparagraph (b) of this paragraph, no complaint shall be issued on any alleged unfair labor practice with occurred more than 6 months before the filing of the charge with the Authority. (B) If the General Counsel determines that the person filing any charge was prevented from filing the charge during the 6-month period referred to in subparagraph (A) of this paragraph by reason of-- (i) any failure of the agency or labor organization against which the charge is made to perform a duty owed to the person, or (ii) any concealment which prevented discovery of the alleged unfair labor practice during the 6-month period. the General Counsel may issue a complaint based on the charge if the charge was filed during the 6-month period beginning on the day of discovery by the person of the alleged unfair labor practice.
Footnote 16 See Department of Health and Human Service, Social Security Administration, Bureau of Field Operations, San Francisco, California, 10 FLRA No. 24 (1982) and 10 FLRA No. 25 (1982). Cf. Department of Defense, U.S. Navy, Norfolk Naval Shipyard, 1 FLRA No. 32 (1979) at 1 FLRA 246-247.
Footnote 17 The unique role of an EEO Counselor has been addressed by the Authority in Department of the Air Force, Headquarters, San Antonio Air Logistics Center, Kelly Air Force, Texas, 3 FLRA 208 (1980); Department of Health, Education and Welfare, Region VIII, Denver, Colorado, 6 FLRA 628 (1981); and Harry S. Truman Memorial Veterans Hospital, Columbia, Missouri, 8 FLRA 42 (1982).
Footnote 18 The relationship between the EEO and labor relations program has been addressed by the Authority in other contexts. The Authority has held that certain matters related to discrimination in employment are within the scope of the duty to bargain under section 7117 of the Statute. American Federation of Government Employees, AFL-CIO, and Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 2 FLRA 603 (1980). The Authority has also held that while it is clearly negotiable to include discrimination matters as set forth in 5 U.S.C. 2302(b)(1) within the scope of a negotiated grievance procedure, a union proposal to permit an employee to pursue a discrimination complaint under both a statutory appeal procedure and a negotiated grievance procedure conflicts with section 7121(d) and is outside the duty to bargain. American Federation of Government Employees, AFL-CIO, Local 3098 and Indiana Air National Guard, 8 FLRA 7 (1982).
Footnote 19 Of course, once the agency makes a decision on a discrimination complaint at any stage which would change or affect the conditions of employment, as defined in section 7103(a)(14), of unit employees, the exclusive representative would have the right under the Statute to notice and an opportunity to bargain consonant with law. The Union would also have the right to be represented at any formal discussion between representatives of the agency and unit employees held for the purpose of implementing a decision on a discrimination complaint which would impact on the conditions of employment of employees in the bargaining unit. Cf. FPM Letter No. 713-29, September 12, 1974, "Interrelationships between The Labor Relations (Program under E.O. 11491) and the Equal Employment Opportunity Program."
Footnote 20 Section 721(b)(3)(B) of the Statute provides that any negotiated procedure shall-- (B) assure ... an employee the right to present a grievance on the employee's own behalf, and assure the exclusive representative the right to be present during the grievance proceeding(.)
Footnote 21 If it were deemed necessary to reach the issue of waiver, I would conclude that the language of Article XI, Section 11 of the collective bargaining agreement and the negotiations leading to that agreement demonstrate a clear and unequivocal waiver. The waiver was of the Union's right to be informed in advance and have an opportunity to be present at meetings held by management with individual employees concerning an individual EEO complaint, as part of the EEO complaint process, including the type of meeting in issue, which was conducted by an EEO counselor pursuant to the agency's informal EEO complaint process. If it were deemed necessary to reach the issue of whether the Union had an opportunity to be represented at the January 26, 1982 meeting, I would conclude that the Union, qua Union, did not have such opportunity. Denson was not present as a representative of the Union. IRS, Fresno.
Footnote 22 See Immigration and Naturalization Service, Washington, D.C., 4 FLRA No. 102 (1980); Veterans Administration, Fayetteville, Arkansas, 5 FLRA No. 76 (1981).
Footnote 23 Section 7114(a)(2)(B) provides: (2) An exclusive representative of an appropriate unit in an agency shall be given the opportunity to be represented at-- (B) any examination of an employee in the unit by a representative of the agency in connection with an investigation if-- (i) the employee reasonably believes that the examination may result in disciplinary action against the employee; and (ii) the employee requests representation.
Footnote 24 Although Markel told Sanders he had been instructed to tear up the admonishment, the letter issued to Sanders indicates that he was the deciding official on the decision to remove the letter of admonishment and replace it with the latter of counseling.
Footnote 25 Since the meeting occurred outside of the agency's EEO complaint process, Respondent does not contend that Article XI, Section 11 B of the negotiated agreement is applicable to the meeting.
Footnote 26 Based on the above, which fully remedies the violation found herein, it is unnecessary to decide whether such conduct also violated section 7116(a)(5) of the Statute. See Office of Program Operations, Field Operations, Social Security Administration, San Francisco Region, 10 FLRA No. 36 (1982) at n. 11.