18:0042(7)CA - HHS, SSA and AFGE -- 1985 FLRAdec CA



[ v18 p42 ]
18:0042(7)CA
The decision of the Authority follows:


 18 FLRA No. 7
 
 DEPARTMENT OF HEALTH AND HUMAN 
 SERVICES, SOCIAL SECURITY ADMINISTRATION 
 Respondent
 
 and 
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO 
 Charging Party
 
                                            Case No. 3-CA-2816
 
                            DECISION AND ORDER
 
    This matter is before the Authority pursuant to the Regional
 Director's "Order Transferring Case to the Authority" in accordance with
 section 2429.1(a) of the Authority's Rules and Regulations.
 
    Upon consideration of the entire record in this case, including the
 stipulation of facts and the contentions of the parties, /1/ the
 Authority finds:
 
    The complaint alleges that the Respondent violated section
 7116(a)(1), (5) and (8) of the Federal Service Labor-Management
 Relations Statute (the Statute) by conducting formal discussions with
 unit employees within the meaning of section 7114(a)(2)(A) of the
 Statute /2/ without first notifying the Charging Party (the Union) and
 affording it an opportunity to be present, and by such conduct also
 bypassed the exclusive representative in violation of the Statute.
 
    The record indicates that on or about August 12, 1981, a meeting was
 held between an agent of the Respondent and two Union officials
 concerning a pending grievance which had been filed by a steward on
 behalf of employees at the Respondent's Falls Church, Virginia, Branch
 Office.  The subject of the grievance concerned the conduct of one of
 the Respondent's supervisors and how he related to the employees under
 his supervision.  Present at the meeting were the Acting District
 Manager of the Alexandria, Virginia, District Office, the Union
 president, and the steward who had filed the grievance.  Thus, the Union
 was present during this discussion of the grievance.  During this
 meeting, the Acting District Manager indicated that she would thoroughly
 investigate the matter before rendering a decision, and gave the Union a
 memo indicating that she would provide a written reply to the grievance
 within five days.  On or about August 17, 1981, the Acting District
 Manager met individually with about ten bargaining unit employees in the
 office of the Branch Manager at the Falls Church location and examined
 them concerning the pending grievance.  These latter meetings are those
 at issue in this case.
 
    Section 7114 of the Statute outlines the representation rights and
 duties of labor organizations which have been accorded exclusive rights
 and duties of labor organizations which have been accorded exclusive
 recognition.  Among them are the right in section 7114(a)(2)(A) to be
 represented at formal discussions concerning any grievance or any
 personnel policy or practice or other general conditions of employment;
 and in section 7114(a)(2)(B) /3/ to be represented at any examination of
 an employee in connection with an investigation when the employee
 reasonably believes that the examination may result in disciplinary
 action and the employee requests representation.
 
    The question here presented is whether a union has the right under
 section 7114(a)(2)(A) of the Statute to be represented at a meeting,
 such as those here at issue, between a management representative and an
 employee or employees when management is conducting an investigation by
 examining such employees for the purpose of gathering facts.  In order
 for the Authority to address this question, it is necessary to analyze
 the constitution of section 7114(a)(2) of the Statute and its
 legislative history.
 
    Section 7114(a)(2)(A) and section 7114(a)(2)(B) provide respectively
 that "(a)n exclusive representative . . . shall be given the opportunity
 to be represented at-- (A) any formal discussion . . . or (B) any
 examination . . . in connection with an investigation . . . ." The use
 of the conjunction "or" to separate these sections indicates a
 Congressional intent that the right to union representation at formal
 discussions in section 7114(a)(2)(A) be separate from the right to union
 representation at an examination contained in section 7114(a)(2)(B).
 That these rights were also intended to apply to different situations is
 evident from the legislative history of section 7114.  Thus, the rights
 in section 7114(a)(2)(A) were intended to apply to union representation
 at certain formal discussions between representatives of an agency and
 unit employees concerning grievances, personnel policies or practices or
 other general conditions of employment.  /4/ However, such rights were
 not intended to apply to meetings which are "highly personal, informal
 meetings." /5/
 
    The legislative history of section 7114(a)(2)(B), on the other hand,
 indicates that Congress intended that when an employee is subjected to
 an examination in connection with an investigation and that employee has
 a reasonable belief that disciplinary action may result, there is a
 right to union representation, upon request.  /6/ Thus, unlike the
 situations covered by section 7114(a)(2)(A) which may give rise to the
 right of union representation, i.e., formal discussions between
 management and an employee or employees concerning grievances, personnel
 policies, practices or other general conditions of employment, /7/ the
 situation giving rise to the right of union representation under section
 7114(a)(2)(B) is the existence of an examination of a unit employee in
 connection with an investigation.  However, such a right will only
 attach where the employee who is being examined reasonably believes that
 the examination may result in disciplinary action and the employee
 requests representation.  /8/ The requirement that the employee request
 representation further highlights the distinction between the right to
 representation under section 7114(a)(2)(A) and section 7114(a)(2)(B),
 respectively.  That is, the right to union representation under section
 7114(a)(2)(A) is not contingent upon an employee's request for such
 representation at formal discussions although it is a requirement for
 representation at examinations in connection with investigations under
 section 7114(a)(2)(B).  Had Congress not intended to separate the rights
 in these sections, then a union could be present at an examination in
 connection with an investigation (which otherwise might fall within the
 meaning of "formal discussion" in section 7114(a)(2)(A)) without being
 so requested.  Clearly, by the very language of section 7114(a)(2)(B),
 this is not what Congress intended.
 
    The question here presented is whether a union has the right to be
 represented at a meeting with an employee or employees when management
 is examining such employee(s) in connection with an investigation
 intended to gather facts (here for the purpose of rendering a decision
 in a grievance).  Such an examination is to be contrasted with formal
 discussions which may be held with grievants during the processing of a
 grievance under the steps of a negotiated grievance procedure.  Clearly
 such discussions, where they are formal in nature, /9/ fall within the
 ambit of section 7114(a)(2)(A).  /10/ Here, the meetings between the
 management representative and the employees were not formal discussions
 under the step