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57 FLRA No. 166
UNITED STATES DEPARTMENT OF ENERGY
ROCKY FLATS FIELD OFFICE
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1103
DECISION AND ORDER
April 30, 2002
Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members
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. The General Counsel filed an opposition to the Respondent's exceptions.
The complaint alleges that the Respondent violated § 7116(a)(1) and (8) of the Federal Service Labor-Management Relations Statute (the Statute) by holding formal discussions with a bargaining unit employee regarding the settlement of that employee's pending Equal Employment Opportunity (EEO) complaint without providing the Union notice and an opportunity to be represented at the discussions. The Judge found that the Respondent violated the Statute as alleged.
Upon consideration of the Judge's decision and the entire record, we reverse the Judge's determination that the Respondent violated the Statute as alleged. Accordingly, we dismiss the complaint.
II. Background and Judge's Decision
A unit employee, who is also the Union vice president, filed an EEO complaint and designated a Union national representative to act as his representative. The Union national representative and the Agency representative responsible for EEO settlements (EEO Representative) discussed the possibility of using alternative dispute resolution procedures (ADR) to resolve the employee's EEO complaint. With the Union national representative's approval, the EEO Representative approached the employee directly, and they discussed the use of ADR.
Sometime after that discussion, the employee and the EEO Representative engaged in the two discussions at issue here. In the first discussion, the employee contacted the EEO Representative to decline the use of ADR. During that discussion, the employee expressed an interest in settling the complaint and proposed specific settlement terms. The EEO Representative agreed to relay those terms to the Agency official who had authority to settle the complaint (the Field Office Manager), which he did, and the Field Office Manager authorized a settlement offer of a within-grade increase. When the employee subsequently contacted the EEO Representative to follow up on their previous discussion --the second discussion at issue here -- the EEO Representative relayed the within-grade increase offer to the employee, and the complaint ultimately settled as a result of that offer. No Union official was notified and given the opportunity to attend either discussion between the employee and the EEO Representative, and no other individuals were present during those discussions.
The General Counsel (GC) issued a complaint alleging that the Respondent violated § 7116(a)(1) and (8) of the Statute by conducting formal discussions with the employee regarding settlement of his EEO complaint without providing the Union with notice and an opportunity to be represented.
The Judge found that the Respondent violated the Statute as alleged. In this regard, the Judge found that the two discussions were "formal discussions" involving a unit employee and an agency representative because they were meetings "between an employee who was pursuing an EEO complaint against the Respondent and the attorney advisor who was assigned to represent the Respondent in the case[,] and had the purpose of developing settlement terms for the employee's complaint." Judge's Decision at 9. In reaching that conclusion, the Judge credited the employee's testimony and found that the discussions were held in the EEO Representative's office with the door closed and lasted approximately thirty minutes each. The Judge also found that the fact the discussions were not scheduled in advance or initiated by the EEO Representative did not compel a conclusion that the discussions were informal.
In addition, the Judge determined that the formal discussions concerned a "grievance," within the meaning of §§ 7103(a)(9) and 7114(a)(2)(A) of the Statute. Further, the Judge rejected the Respondent's claims that the Union's presence at EEO settlement discussions [ v57 p755 ] would conflict with EEO regulations, the Alternative Dispute Resolution Act, 5 U.S.C. § 571 et seq. (ADR Act), and the Privacy Act, 5 U.S.C. § 552a. Finally, the Judge rejected the Respondent's claim that the Union had waived its right to be present at formal discussions.
III. Positions of the Parties
A. Respondent's Exceptions
The Respondent excepts to the Judge's decision on three grounds. First, the Respondent claims that, in finding that the discussions were formal, the Judge erred because: the EEO Representative is neither the employee's supervisor nor in his management hierarchy; the discussions included only the EEO Representative and the employee, were not scheduled or recorded, did not have an agenda, and lasted no more than five minutes; and, at all times during the discussions, the employee was standing in the open doorway of the EEO Representative's office. Second, the Respondent claims that, in finding that the discussions concerned a "grievance," the Judge erred because an EEO complaint is not a grievance under the parties' agreement or EEO procedures, and that neither the Privacy Act nor the ADR Act permits Union participation in discussions concerning settlement of EEO complaints. Third, the Respondent claims that the Judge erred in finding that the Union did not waive its statutory right to notice concerning EEO complaints.
B. GC's Opposition
With regard to the Respondent's contention that the discussions were not formal, the GC argues that the Judge credited the testimony of the employee rather than that of the EEO Representative, and the employee's testimony supports the Judge's finding that the discussions were formal. With regard to the Respondent's claim that an EEO complaint is not a grievance, the GC asserts that the Respondent's reliance on the Privacy Act is misplaced because there were no privacy interests involved here, and that the ADR Act is irrelevant because this case involves neither mediation nor ADR procedures. Finally, the GC contends that the Judge properly found that the Union had not waived its right to receive notice of the discussions.
IV. Analysis and Conclusions
Under § 7114(a)(2)(A) of the Statute, a union has the right to be represented at a formal discussion between one or more agency representatives and one or more unit employees or their representatives concerning a grievance, personnel policy or practices, or other general condition of employment. United States Dep't of Justice, Immigration & Naturalization Serv., N.Y. Office of Asylum, Rosedale, N.Y., 55 FLRA 1032, 1034 (1999). For the § 7114(a)(2)(A) right to attach, there must be: (1) a discussion; (2) that is formal; (3) between an agency representative 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. Gen. Servs. Admin., 48 FLRA 1348, 1354 (1994) (GSA).
There is no dispute that there were discussions between an Agency representative and a unit employee. The Respondent challenges, among other things, the Judge's finding that the discussions were formal. The determination as to whether a discussion is formal is based on the totality of the circumstances presented. F.E. Warren Air Force Base, Cheyenne, Wyo., 52 FLRA 149, 155-57 (1996) (F.E. Warren). In making that determination, the Authority has stated that a number of factors are relevant: (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) how long the discussions lasted; (6) whether a formal agenda was established for the discussions; and (7) the manner in which the discussions were conducted. GSA, 48 FLRA at 1355. These factors are illustrative, and other factors may be identified and applied as appropriate. F.E. Warren, 52 FLRA at 157.
We conclude that the totality of the circumstances presented in this case demonstrates that the discussions were not formal. In reaching this conclusion, we find it significant that the discussions were not initiated by management, but by the employee, who visited the EEO Representative in an impromptu manner. In this connection, the Judge found that the employee's "just stopping by" the EEO Representative's office was "consistent with [the employee's] relationship with [the EEO Representative]." Judge's Decision at 4 n.3. Because the discussions were impromptu and employee-initiated, management did not establish when or where those discussions would take place, or what those discussions would concern. Consequently, as a practical matter, the Respondent could not provide the Charging Party with advance notice that the discussions would take place. We note that the Authority has not previously found such impromptu, employee-initiated discussions to constitute formal discussions within the meaning of § 7114(a)(2)(A) of the Statute. See, e.g., Dep't of Health and Human Servs., Soc. Sec. Admin. & Soc. Sec Admin. Field Operations, Region II, 29 FLRA 1205, 1208-09 (1987) ("spontaneity" and "employee-initiated aspects of the meeting" considered in finding meeting informal). Cf. United States Dep't of Justice, Bur. of Prisons, Fed. Corr. Inst., Bastrop, Tex., 51 FLRA 1339, 1343 (1996) (meeting scheduled in advance by management representative found formal). Further, we note that: the discussions involved only one representative of the Respondent, who was not the [ v57 p756 ] employee's supervisor or in his management chain of command; there were no agendas for the discussions; and no minutes of the discussions were subsequently prepared.
We note that some of the Judge's findings -- that the discussions took place in the EEO Representative's office, lasted approximately thirty minutes, and concerned settlement of an EEO complaint -- indicate formality. [n1] However, discussions are not necessarily "formal" within the meaning of § 7114(a)(2)(A) of the Statute simply because they have some indicia of formality. See, e.g., Harry S. Truman Mem'l Veterans Hosp., Columbia, Mo., 16 FLRA 1049, 1051 (1984). Further, although the purpose of discussions may be considered in determining whether discussions are formal, see GSA, 48 FLRA at 1355-56, the fact that discussions have a formal purpose does not, by itself, demonstrate that the discussions were formal. For example, discussions have been found informal even where the purpose of the discussions was to settle an EEO complaint. See Social Sec. Admin. & Soc. Sec. Admin., Field Operations, N.Y. Region, 16 FLRA 1021, 1033-34 (1984). Thus, the fact that the disputed discussions concerned settlement of an EEO complaint does not compel a conclusion that the discussions were formal.
For the foregoing reasons, we conclude that the discussions were not "formal" within the meaning of § 7114(a)(2)(A). Accordingly, we reverse the Judge's finding that the Respondent violated the Statute as alleged, and we dismiss the complaint. [n2]
The complaint is dismissed.
File 1: Authority's Decision in 57 FLRA No.
File 2: ALJ's Decision
Footnote # 1 for 57 FLRA No. 166 - Authority's Decision
The Respondent challenges the Judge's findings regarding the location and length of the meetings. As the Judge's findings were based on a credibility determination concerning the employee, and that determination was grounded in considerations other than witness demeanor, we review the Judge's findings based on the record as a whole. United States Dep't of Commerce, Nat'l Oceanic & Atmospheric Admin., Nat'l Ocean Serv., Coast & Geodetic Survey, Aeronautical Charting Div., Wash., D.C., 54 FLRA 987, 1007 (1998). Here, the testimony relied on by the Judge supports his findings, see Transcript at 48-52, and the Respondent neither asserts nor provides any basis for concluding that the Judge erred by crediting the employee's testimony.
Footnote # 2 for 57 FLRA No. 166 - Authority's Decision
Because we dismiss the complaint on the ground that the discussions were not formal, we do not address the Respondent's contentions that the Judge erred in finding that: (1) the discussions concerned a "grievance," within the meaning of the Statute; and (2) the Union did not waive its statutory right to notice concerning EEO complaints.