[ v15 p423 ]
15:0423(87)CA
The decision of the Authority follows:
15 FLRA No. 87
BUREAU OF GOVERNMENT FINANCIAL
OPERATIONS, HEADQUARTERS
Respondent
and
NATIONAL TREASURY EMPLOYEES UNION
AND NATIONAL TREASURY EMPLOYEES UNION
CHAPTER 202
Charging Party
Case No. 3-CA-2646
13 FLRA No. 5
SUPPLEMENTAL DECISION AND ORDER
On September 15, 1983, the Authority issued its decision in the
above-entitled case finding that the Respondent, Bureau of Government
Financial Operations, Headquarters, had not violated section 7116(a)(1)
and (8) of the Federal Service Labor-Management Relations Statute (the
Statute) and ordering that the complaint be dismissed. More
specifically, the Authority concluded, based on Internal Revenue Service
and Brookhaven Service Center, 9 FLRA 930 (1982) (Brookhaven), that the
Respondent was not obligated under section 7114(a)(2)(A) of the Statute
/1/ to afford the Union, the National Treasury Employees Union and
National Treasury Employees Union, Chapter 202, the opportunity to be
present at an interview of a unit employee in preparation for a hearing
before the Merit Systems Protection Board (MSPB).
Subsequent to the issuance of the Authority's decision herein, the
Union petitioned for review of the Authority's decision in the U.S.
Court of Appeals for the District of Columbia Circuit (No. 83-2180).
Thereafter, the Authority filed a motion to remand in order "to address
with more particularity in a supplemental decision the application of
Brookhaven to the facts and circumstances of the instant case," which
motion was granted by the Court. Before addressing the application of
Brookhaven to the instant case, however, it will be helpful to review
the facts presented in Brookhaven and the conclusions reached therein.
The situation presented in Brookhaven, which was based upon a
stipulation of facts, involved meetings with unit employees for the
purpose of enabling the respondent to prepare its case for a pending
unfair labor practice proceeding and for an upcoming arbitration hearing
conducted pursuant to the parties' collective bargaining agreement. The
Authority determined that the meetings in question did not constitute
"formal discussions" within the meaning of section 7114(a)(2)(A) of the
Statute at which the union was entitled to be represented. In so doing,
the Authority noted that not all meetings with unit employees constitute
formal discussions under that section. /2/ Based on the facts presented
in Brookhaven, the Authority reached the conclusion that the meetings,
which the Authority characterized as fact gathering sessions, did not
constitute formal discussions on the basis that attendance thereat was
not mandatory and that no agenda had been established by the respondent
to discuss matters involving general conditions of employment or
specific changes in job duties. /3/ Thus, the Authority found the
respondent did not unlawfully deny the Union the opportunity to be
present at the interview in question. In addition, the Authority found
that the respondent did not unlawfully question its employees. /4/
In the instant case, as observed by the Administrative Law Judge and
noted by the Authority in its September 15, 1983 decision, the sole
question before the Authority is whether the interview in question was a
"formal discussion" within the meaning of section 7114(a)(2)(A) of the
Statute.
Section 7114(a)(2)(A) of the Statute provides that an exclusive
representative shall be given the opportunity to be represented at a
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
conditions of employment. In order for that right to attach, therefore,
all elements set forth in that section must be found to exist: (1) a
discussion; (2) which is formal; (3) between one or more
representatives of the agency and one or more employees in the unit or
their representatives; (4) concerning any grievance or any personnel
policy or practices or other general conditions of employment. While
the Authority did not separately address each of these elements in
Brookhaven, more recent cases have separately analyzed one or more of
these elements. Thus, for example, in Defense Logistics Agency, Defense
Depot Tracy, Tracy, California, 14 FLRA No. 78 (1984), the Authority
addressed the elements of subject matter and formality, concluding that
even though the meeting concerned a condition of employment, it was not
formal in nature. Similarly, in Office of Program Operations, Field
Operations, Social Security Administration, San Francisco Region, 10
FLRA 172 (1982), the Authority separately addressed who was present at
the meeting, whether the meeting was formal, and the subject matter of
the meeting, concluding that the meeting therein was a formal discussion
within the meaning of section 7114(a)(2)(A) of the Statute. The
Authority reaffirms herein this analytical approach for determining
whether a right to union representation exists under section
7114(a)(2)(A), i.e., examination of the statutory elements based upon
the facts presented in each case.
Turning to the instant case, the question raised is whether a
pre-trial interview of a potential witness in preparation for a
scheduled hearing before MSPB constitutes a formal discussion within the
meaning of section 7114(a)(2)(A) at which the Union should have been
given an opportunity to be represented. For the reasons which follow,
we conclude that it was not.
The facts of the present matter, set forth in greater detail in the
Judge's Decision, indicate that James Lewis, an employee of the
Respondent, was called to the Office of Personnel by a Labor Relations
Specialist where he was questioned concerning a pending hearing before
MSPB regarding an appeal filed by a co-worker. Lewis had witnessed an
incident which was apparently considered in the proposed dismissal of
the co-worker, Philip Murphy. As found by the Judge, Lewis was
interviewed by an attorney who was to represent the Respondent at
Murphy's MSPB hearing and two Labor Relations Specialists. During the
course of a meeting which lasted approximately 20 to 30 minutes, the
attorney asked Lewis a number of questions concerning his observations
of the incident in which Murphy was involved.
Under the circumstances noted above, the Authority concludes that the
interview of Lewis by an attorney in preparation of Respondent's case
for Murphy's MSPB hearing did not concern "any grievance, personnel
policy or practices or other general conditions of employment" and was
not "formal" within the meaning of section 7114(a)(2)(A) of the Statute.
With respect to the subject matter of the discussion, first, the
meeting did not concern a grievance as that term is used in section
7114(a)(2)(A). While section 7103(a)(9) of the Statute contains a broad
definition of "grievance," /5/ the applicable legislative history of the
Statute indicates that Congress did not intend it to be all-inclusive.
/6/ Rather, a union's right to be represented at a formal discussion
concerning a grievance pursuant to section 7114(a)(2)(A) must be read in
the context of the Statute as a whole which consistently distinguishes
between grievances and statutory appeals procedures. With respect to
this distinction, see generally section 7121 of the Statute. In
particular, sections 7121(d) and 7121(e) of the Statute /7/ provide that
an employee may raise certain issues under a statutory appeals procedure
or under the negotiated grievance procedure, but not both. Further,
section 7114(a)(5) of the Statute draws distinctions between negotiated
grievance procedures and other forums. /8/ Moreover, the United States
Court of Appeals for the Ninth Circuit reversed a decision of the
Authority in which the Authority held that a meeting to discuss an Equal
Employment Opportunity (EEO) complaint concerned a "grievance" within
the meaning of section 7114(a) since an EEO complaint fell within the
broad definition of section 7103(a)(9) of the Statute. /9/ In its
decision, the Court, noting that the EEO complaint was filed pursuant to
statutory procedures of the Equal Employment Opportunity Commission
(EEOC), decided that the EEO claim of discrimination did not constitute
a "grievance" within the meaning of section 7114(a)(2)(A). In this
regard, the Court stated, " . . . the EEOC procedures involved in this
case are not controlled by 5 U.S.C. 7114(a)(2)(A) because they are
separate and distinct from the grievance process to which 5 U.S.C. 7103
and 7114 are directed." Thus, the Authority finds, based on the
distinctions in the Statute and its legislative history noted above, and
the Court decision in the IRS, Fresno case, supra, that a grievance
within the meaning of section 7114(a)(2)(A) does not encompass a
statutory appeal. /10/ In the instant case, the meeting was held solely
in connection with a statutory appeal-- namely, an MSPB appeal.
Accordingly, the Authority concludes that the meeting did not concern a
"grievance" within the meaning of section 7114(a)(2)(A) of the Statute.
Second, the meeting between Lewis and the Respondent's
representatives did not concern "any personnel policy or practices." In
this regard, the record is clear that the meeting was limited to
questioning Lewis regarding his observations related to a discrete
incident relied upon by the Respondent in proposing a dismissal action
concerning another employee. There was no discussion of any personnel
policy or practice. The meeting was held for the sole purpose of
preparing Respondent's representatives for a hearing before MSPB on the
other employee's appeal. Further, the personnel policies and practices
referred to in section 7114(a)(2)(A) are general rules applicable to
agency personnel, not discrete actions taken with respect to individual
employees. The language of Sec. 7114(a)(2)(A) refers to " . . .
personnel policy or practices or other general conditions of employment.
. . . " Use of the phrase "or other" indicates that 'general' refers
back to "personnel policy or practice." Had Congress not intended
'general conditions of employment,' to subsume personnel policy or
practice, it would have omitted the word 'other.' This interpretation is
bolstered by Representative Udall's sectional analysis /11/ which
clearly states if a discussion does not concern conditions of employment
which affect employees in the unit generally, and is not a grievance,
the union has no right to representation under section 7114(a)(2)(A).
The agency staff personnel were interviewing Mr. Lewis to ascertain the
facts concerning Mr. Murphy's actions; they were not discussing general
personnel policy or practices. /12/
Finally, the meeting cannot be said to have involved any "other
general condition of employment." Section 7103(a)(14) of the Statute
defines "conditions of employment" as " . . . personnel policies,
practices, and matters, whether established by rule, regulation, or
otherwise, affecting working conditions(.)" However, the legislative
history of section 7114(a)(2)(A) of the Statute clearly indicates the
Congressional intent that formal discussions are limited to those
discussions (other than grievance meetings) "which concern conditions of
employment affecting employees in the unit generally." /13/ As noted
above, the meeting was concerned solely with the questioning of a
witness to an event which served as a basis for the proposed adverse
action against another employee.
Therefore, the Authority concludes that the subject matter of the
meeting between Lewis and Respondent's representatives did not involve a
grievance or any personnel policy or practices or other general
conditions of employment-- at least one of which must be present as a
prerequisite for finding that the subject matter of the discussion falls
within the purview of section 7114(a)(2)(A) of the Statute.
Moreover, the Authority concludes that the interview of Lewis was not
"formal" in nature. In Department of Health and Human Services, Social
Security Administration, Bureau of Field Operations, San Francisco,
California, 10 FLRA 115 (1982), the Authority noted a number of factors
relevant to a determination of whether meetings, alleged to be formal
discussions within the meaning of section 7114(a)(2)(A) of the Statute,
are in fact "formal" in nature. Thereafter, in Defense Logistics
Agency, Defense Depot Tracy, Tracy, California, supra, the Authority
emphasized that such factors were not intended to be exhaustive, and
that other factors may be identified and applied as appropriate in a
particular case. Thus, in determining formality, the Authority will
consider the totality of facts and circumstances presented.
The Judge herein found that the interview of Lewis constituted a
formal meeting because the meeting was initiated by management, was held
in an area apart from the employee's normal work area, and was marked by
the taking of notes by "high level" representatives of the Respondent.
In disagreeing with the Judge's conclusion that the meeting in question
was formal in nature, the Authority notes particularly that the meeting
was called by staff t specialists who did not have any supervisory or
managerial responsibility over the employee being interviewed; that the
meeting was held in a staff specialist's office and not in the office of
anyone in the employee's chain of supervision and no one in that chain
attended the meeting; and that there was no clear finding that Lewis'
continued presence at the meeting was mandatory. Additionally, the
record does not establish that there was any advance notice of the
meeting or that any formal agenda was prepared and distributed prior to
the interview. /14/
In summary, section 7114(a)(2)(A) rights arise only when all of the
statutory criteria exist. That is, there must be a discussion which is
formal in nature between one or more representatives of the agency and
one or more employees or their representatives in an exclusively
represented bargaining unit concerning grievances, personnel policy or
practices, or other general conditions of employment. The absence of
any one of these criteria is fatal to a complaint alleging that an
agency has failed to accord an exclusive representative its right to be
represented. As noted above, in the instant case at least two of these
criteria are not met. The subject matter of the meeting did not involve
a grievance, personnel policy or practices, or other general conditions
of employment. In addition, the totality of the facts and circumstances
does not establish that the meeting was formal in nature.
Having found that the interview of Lewis by the Respondent's
representatives was not a formal discussion within the meaning of
section 7114(a)(2)(A) of the Statute, the Authority concludes that the
Respondent's failure to provide the Union with an opportunity to be
represented was not violative of section 7116(a)(1) and (8) of the
Statute, and the Judge's finding to the contrary must be set aside.
ORDER
IT IS HEREBY ORDERED that the complaint in Case No. 3-CA-2646 be, and
it hereby is, dismissed.
Issued, Washington, D.C., August 1, 1984
Barbara J. Mahone, Chairman
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
Member Haughton, concurring in part and dissenting in part:
Today the Authority issues a supplemental decision in the instant
case. As a result of reconsideration by the Authority of the issues
presented, today's decision changes the earlier analysis but reaches the
same conclusion. While I generally support the analysis my colleagues
set forth, I believe its application must lead to the conclusion that
the Respondent violated section 7116(a)(1) and (8) of the Statute by not
affording the Union the opportunity to be present at a pre-MSPB hearing
interview between the Respondent's representative and a bargaining unit
employee. In the decision issued on September 15, 1983, the Authority
found that the interview of the employee did not constitute a formal
discussion based on its earlier decision in Internal Revenue Service and
Brookhaven Service Center, 9 FLRA 930 (1982). In Brookhaven the
Authority concluded
(T)he . . . meetings did not constitute formal discussions
within the meaning of section 7114(a)(2)(A). Rather, they were
fact-gathering sessions between a representative of the Respondent
and a unit employee wherein management was merely seeking
information to aid in the preparation of its cases for
presentation at proceedings before a third-party neutral, in the
same manner as an exclusive representative may gather the facts
from employees prior to such proceedings.
Brookhaven, at 933. Because the Authority regarded the interview in
the instant case as such a "fact-gathering session," it did not
separately consider whether, for example, the meeting in question here
was "formal" in nature or concerned "any grievance or any personnel
policy or practices or other general conditions of employment."
The Authority today does not rest on the use of "fact-gathering" as a
determinant in deciding cases arising under section 7114(a)(2)(A) but
reaffirms the approach used in more recent cases where the specific
statutory language is analyzed and applied to the facts of each case.
When this is done the conclusion must be that there was, in fact, a
"formal" discussion within the meaning of section 7114(a)(2)(A) and it
did concern "personnel policy or practices" as provided in that section.
The majority finds that the interview in question did not concern
"any grievance or any personnel policy or practices or other general
conditions of employment." I agree with the majority's finding that the
interview here did not concern a grievance but, rather, concerned a
statutory appeal. I must differ, however, with the finding that the
interview was not a discussion "concerning . . . any personnel policy or
practices. . . . "
In the absence of any specific legislative history on this particular
phrase, it must be given its ordinary meaning. Thus, a meeting which
has significance for, or is related to, an agency's personnel policy or
practice is one that concerns such policy or practice.
It is clear from the record that the agency proposed the dismissal of
an employee following that employee's participation in an altercation
with a supervisor. The action proposed either must have been based on
the application of some existing personnel policy or practice, or itself
established a personnel policy or practice. In either event, it follows
that the proposed dismissal action concerned a personnel policy or
practice. It is also clear that the interview concerned that same
policy or practice. That is, the purpose of the interview was to
discuss the situation that formed the basis of the Respondent's action
and to provide the Respondent with information with which to defend the
action before MSPB. Therefore, I find that the interview was a
discussion "concerning" the application of "personnel policy or
practices."
It is important to emphasize that the application of the previously
existing or newly-established personnel policy or practice that led to
the imposition of discipline in this instance could have an effect on
unit employees generally. For example, if dismissal or discipline of a
unit employee is proposed at some future date, the way in which the
Respondent has previously applied a personnel policy or practice could
have precedential effect and thus would be a concern to the Union in
fulfilling its representational responsibilities. For this reason, the
interview also concerned the interests of employees in the unit
generally. /15/
Furthermore, I find based on the record that the interview herein was
"formal" within the meaning of section 7114(a)(2)(A) of the Statute.
The interview was held away from the employee's desk in the office of
the Respondent's labor relations specialist, the interview lasted
approximately 20 to 30 minutes, and notes of the interview were taken.
Additionally, the record indicates that the interview was more than
simply a spontaneous or informal meeting but was a planned effort to
elicit information from the particular employee. Indeed the employee
was not called in for questioning until Respondent's representatives
learned the employee was scheduled to appear at the MSPB hearing in the
capacity of a Union witness. Finally, it would be hard to say that the
meeting was entirely voluntary in light of the witness' testimony that
the Respondent's agents told him "it would be in the best interest of
everybody if he cooperated, but he did not have to." See p. 3 of the
Judge's Decision in this matter. Bureau of Government Financial
Operations, Headquarters, 13 FLRA No. 5 (1983). Therefore, based on the
totality of the facts and circumstances presented here, I am of the view
that the interview in question meets the test of formality as defined by
the Authority in previous decisions. /16/
In sum, I find that the interview here was formal and concerned a
personnel policy or practice. I also find that a discussion took place
between one or more representatives of the agency and an employee in the
unit. Therefore, based on the entire record, and in consideration of
the specific statutory language, I conclude that the Union was entitled
to be represented at the interview under section 7114(a)(2)(A) of the
Statute and that the Respondent's failure to afford the Union an
opportunity to be represented there constituted a violation of section
7116(a)(1) and (8) of the Statute.
Issued, Washington, D.C., August 1, 1984
Ronald W. Haughton, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
/1/ Sec. 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 conditions of employment(.)
/2/ The Authority specifically noted the following statement of
Representative Clay of Missouri concerning the word "formal":
The word "formal" was inserted before "discussion" in order to
make clear the intention that this subsection does not require
that an exclusive representative be present during highly
personal, informal meetings such as counseling sessions . . .
124 Cong.Rec. 29187 (1978).
/3/ We disagree, therefore, with our colleague's characterization of
Brookhaven as set forth in his separate opinion. However, in order to
clarify any possible ambiguity along these lines, we are issuing this
Supplemental Decision and Order in the instant case.
/4/ In this regard, the Authority discussed the precautions agency
management must take prior to conducting interviews of unit employees in
preparation for third party proceedings. The Authority found, from the
facts of the case, that the manner in which the employees were
questioned did not constitute an independent violation of section
7116(a)(1) of the Statute. Thus, the employees had been advised prior
to the meetings as to their purpose, that they were under no obligation
to be interviewed and that they would not be subject to reprisals from
agency management regardless of whether they consented to be
interviewed. Moreover, the Authority concluded that the General Counsel
had not established that the questioning of employees was done in a
coercive context or exceeded its legitimate scope and purpose of
otherwise interfered with employees' rights under the Statute.
/5/ Section 7103(a)(9) provides that:
(9) 'grievance' means any complaint--
(A) by any employee concerning any matter relating to the
employment of the employee;
(B) by any labor organization concerning any matter relating to
the employment of any employee; or
(C) by any employee, labor organization, or agency concerning--
(i) the effect or interpretation, or a claim of breach, of a
collective bargaining agreement; or
(ii) any claimed violation, misinterpretation, or
misapplication of any law, rule, or regulation affecting
conditions of employment(.)
/6/ In this regard, the House Committee on Post Office and Civil
Service noted in its Report accompanying H.R. 11280 with regard to the
definition of "grievance" in section 7103(a)(9), which is identical to
that contained in section 7103(a)(9) of the Statute:
It should be noted that, although this subsection is virtually
all-inclusive in defining "grievance," section 7121 excludes
certain grievances from being processed under a negotiated
grievance procedure, thereby limiting the net effect of the term.
H.R. Rep. No. 95-1403, 95th Cong. 2d Sess. 40 (1978), reprinted in
Legislative History of the Federal Service Labor-Management Relations
Statute, Title VII of the Civil Service Reform Act of 1978, at 686
(1979).
/7/ Sections 7121(d) and (e) state that:
(d) An aggrieved employee affected by a prohibited personnel
practice under section 2302(b)(1) of this title which also fails
under the coverage of the negotiated grievance procedure may raise
the matter under a statutory procedure or the negotiated
procedure, but not both. An employee shall be deemed to have
exercised his option under this subsection to raise the matter
under either a statutory procedure or the negotiated procedure at
such time as the employee timely initiates an action under the
applicable statutory procedure or timely files a grievance in
writing, in accordance with the provisions of the parties'
negotiated procedure, whichever event occurs first. Selection of
the negotiated procedure in no manner prejudices the right of an
aggrieved employee to request the Merit Systems Protection Board
to review the final decision pursuant to section 7702 of this
title in the case of any personnel action that could have been
appealed to the Board, or, where applicable, to request the Equal
Employment Opportunity Commission to review a final decision in
any other matter involving a complaint of discrimination of the
type prohibited by any law administered by the Equal Employment
Opportunity Commission.
(e)(1) Matters covered under sections 4303 and 7512 of this
title which also fall within the coverage of the negotiated
grievance procedure may, in the discretion of the aggrieved
employee, be raised either under the appellate procedures of
section 7701 of this title or under the negotiated grievance
procedure, but not both. Similar matters which arise under other
personnel systems applicable to employees covered by this chapter
may, in the discretion of the aggrieved employee, be raised either
under the appellate procedures, if any, applicable to those
matters, or under the negotiated grievance procedure, but not
both. An employee shall be deemed to have exercised his option
under this subsection to raise a matter either under the
applicable appellate procedures or under the negotiated grievance
procedure at such time as the employee timely files a notice of
appeal under the applicable appellate procedures or timely files a
grievance in writing in accordance with the provisions of the
parties' negotiated grievance procedure, whichever event occurs
first.
(2) In matters covered under sections 4303 and 7512 of this
title which have been raised under the negotiated grievance
procedure in accordance with this section, an arbitrator shall be
governed by section 7701(c)(1) of this title, as applicable.
/8/ Section 7114(a)(5) of the Statute provides that:
(5) The rights of an exclusive representative under the
provisions of this subsection shall not be construed to preclude
an employee from--
(A) being represented by an attorney or other representative,
other than the exclusive representative, of the employee's own
choosing in any grievance or appeal action; or
(B) exercising grievance or appellate rights established by
law, rule, or regulation; except in the case of grievance or
appeal procedures negotiated under this chapter.
/9/ Internal Revenue Service, Fresno Service Center, Fresno,
California, 7 FLRA 371 (1981); rev'd sub nom Internal Revenue Service,
Fresno Service Center, Fresno, California v. Federal Labor Relations
Authority, 706 F.2d 1019 (9th Cir. 1983).
/10/ Such a determination is consistent with those rights
specifically granted an exclusive representative under section 7121(b)
of the Statute and those granted employees under section 7114(a)(5) of
the Statute. Thus, section 7121(b) of the Statute provides an exclusive
representative the sole right to represent an employee in connection
with a grievance filed pursuant to a negotiated grievance procedure and
it provides an exclusive representative the right to be present during a
negotiated grievance proceeding should the employee elect to present a
grievance on his own behalf, while section 7114(a)(5) of the Statute
gives an employee the option of being represented by an attorney or by a
representative of the employee's own choosing, other than the exclusive
representative. In any grievance or appellate action initiated in any
forum other than through a negotiated grievance procedure.
Section 7121(b) of the Statute provides that:
(b) Any negotiated grievance procedure referred to in
subsection (a) of this section shall--
(1) be fair and simple,
(2) provide for expeditious processing, and
(3) include procedures that--
(A) assure an exclusive representative the right, in its own
behalf or on behalf of any employee in the unit represented by the
exclusive representative, to present and process grievances;
(B) assure such 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; and
(C) provide that any grievance not satisfactorily settled under
the negotiated grievance procedure shall be subject to binding
arbitration which may be invoked by either the exclusive
representative or the agency.
/11/ In his sectional analysis of the "Udall substitute,"
Representative Udall, in describing the proposed section 7114 stated:
The reported section 7114 provides the right of representation
for any discussion between one or more representatives of the
agency and one or more unit employees or their representatives
concerning any grievance, personnel policy or practice, or other
conditions of employment. By inserting the word "general" before
"conditions of employment," the substitute limits the right of
representation to those formal discussions (other than grievance
discussions) which concern conditions of employment affecting
employees in the unit generally. 124 Cong.Rec. 29184 (1978).
/12/ The thrust of our colleague's theory in dissenting on this point
is that since Respondent's action in terminating Murphy must have been
based on the application of a personnel policy or practice, it follows
that an interview of a witness to the event which ultimately led to the
termination necessarily "concerned" this same underlying personnel
policy or practice. Given the facts of this case, such an analysis is
strained at best. While the Respondent's action in terminating Murphy
may have been taken pursuant to some personnel or practice of Respondent
(and this is not at all clear from the record), we cannot find that an
interview, in preparation for an MSPB hearing, of a witness to an event
which led to the termination was a discussion concerning this same
personnel policy or practice. Any connection between the policy and the
interview is simply far too attenuated.
/13/ See n. 11, supra.
/14/ See, e.g., Department of Health and Human Services, Social
Security Administration, Bureau of Field Operations, San Francisco
Region, 10 FLRA 120 (1982); Veterans Administration Medical and
Regional Office Center, Cheyenne, Wyoming, 13 FLRA No. 70 (1983);
Department of Health and Human Services, Social Security Administration,
14 FLRA No. 5 (1984); 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), wherein the Authority
applying a number of factors relevant to a determination of whether
meetings are in fact "formal" in nature, concluded that on the basis of
the facts in the record it had not been established that the meetings in
question were formal discussions within the meaning of section
7114(a)(2)(A) of the Statute.
/15/ While the interview may also have concerned general conditions
of employment, I find it unnecessary to decide this issue in light of my
conclusion that the interview concerned a personnel policy or practice
affecting employees in the unit generally.
/16/ See Department of Health and Human Services, Social Security
Administration, Bureau of Field Operations, San Francisco, California,
10 FLRA 115 (1982), in which the Authority identified some of the
factors to be considered in determining whether a meeting is "formal" in
nature; and Defense Logistics Agency, Defense Depot Tracy. Tracy,
California, 14 FLRA No. 78 (1984), wherein the Authority held that the
totality of facts and circumstances presented in each case will be
considered in determining formality. See also Office of Program
Operations, Field Operations, Social Security Administration, San
Francisco Region, 15 FLRA No. 15 (1984) wherein the Authority found a
meeting to be a formal discussion, noting among other things that the
staff meeting was called and conducted by the Branch Office Manager and
that the branch employees were required to attend; Internal Revenue
Service (District, Region, National Office Unit), 11 FLRA No. 23 (1983)
aff'd sub nom. National Treasury Employees Union v. Federal Labor
Relations Authority, No. 83-1295 (D.C. Cir. Jan. 26, 1984), in which the
Authority concluded that interviews with unit employees which were
initiated by management; were conducted by management officials with a
number of unit employees; required attendance of the employees; and
followed a formal agenda were formal within the meaning of the Statute;
and Office of Program Operations, Field Operations, Social Security
Administration, San Francisco Region, 10 FLRA 172 (1982), wherein the
Authority found meetings with a unit employee to be formal discussions
based o4 the fact that the meetings were structured in accordance with
the requirements of the parties' negotiated grievance procedure, and
that records of the meetings were made and copies given to the employee
involved.