[ v51 p1339 ]
51:1339(109)CA
The decision of the Authority follows:
51 FLRA No. 109
FEDERAL LABOR RELATIONS AUTHORITY
WASHINGTON, D.C.
_____
U.S. DEPARTMENT OF JUSTICE
BUREAU OF PRISONS
FEDERAL CORRECTIONAL INSTITUTION
BASTROP, TEXAS
(Respondent)
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
AFL-CIO, LOCAL 3828
(Charging Party)
DA-CA-20915
_____
DECISION AND ORDER
June 13, 1996
_____
Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Donald S. Wasserman, Members.
I. Statement of the Case
This unfair labor practice case is before the Authority on exceptions filed by the Respondent to the attached decision of the Administrative Law Judge.(1) The General Counsel filed an opposition to the Respondent's exceptions.
The complaint alleges that the Respondent violated: (1) section 7116(a)(1) and (8) of the Federal Service Labor-Management Relations Statute (the Statute) by holding a formal discussion with a bargaining unit employee concerning a potential grievance without affording the Charging Party (the Union) notice and an opportunity to be represented at the discussion, as required by section 7114(a)(2)(A) of the Statute; (2) section 7116(a)(1) and (5) because it bypassed the Union by meeting directly with a bargaining unit employee on a potential grievance; and (3) section 7116(a)(1) because the bypass demeaned the Union and interfered with employees' rights under section 7102 of the Statute to designate and rely on the Union for representation. The Judge found that the Respondent violated the Statute.
Upon consideration of the Judge's decision and the entire record, and for the reasons stated below, we adopt the Judge's findings, conclusions, and recommended Order.
II. Judge's Decision
The facts, which are fully set forth in the Judge's decision, are briefly summarized here.
On May 11, 1992, unit employee John Eberle, Jr. met three times with his second-level supervisor, Ray Rosalez, concerning Eberle's work performance. Eberle and a Union representative subsequently met with Eberle's higher-level supervisors--Associate Warden Robert DeChene, the Acting Warden, and the Warden--to try to resolve the differences between Eberle and Rosalez before filing a grievance. On May 18, 1992, at the Warden's direction, DeChene called Eberle and Rosalez to his office. The Union was not given notice of the meeting or an opportunity to be present. During the meeting, DeChene refused Eberle's requests for Union representation, did not allow Eberle or Rosalez to speak, and instructed them to "quit acting like children" and go back to their work. Judge's Decision at 4. Later that day, the Warden informed the Union that the meeting constituted his response to the Union's concerns and that the matter was closed.
The Judge found that the Respondent: (1) failed to comply with section 7114(a)(2)(A) in violation of section 7116(a)(1) and (8); (2) bypassed the Union in violation of section 7116(a)(1) and (5); and (3) interfered with employees' rights in violation of section 7116(a)(1).
III. Positions of the Parties
A. Respondent
As an initial matter, the Respondent contends that the Judge exceeded his authority "by finding the Respondent committed an offense that was neither alleged in the complaint nor prosecuted at the hearing[.]" Exceptions at 1. The Respondent argues that, although the complaint alleges that the meeting involved an alleged discussion of "a potential grievance[,]" the Judge based his conclusions on his description of the complaint as stating that the Respondent "[met] directly with an employee on a grievance[.]" Exceptions at 8 (emphases in original). According to the Respondent, the Judge was precluded from considering whether the meeting concerned a grievance, because the complaint concerned only a potential grievance and the case was litigated on that basis.
The Respondent maintains that the meeting was merely a counseling session and that, because it did not involve any exchange of views or any personnel policy or practice, the meeting was neither a "discussion" nor "formal." The Respondent also asserts that the meeting did not concern a grievance within the meaning of section 7114(a)(2)(A) because it concerned only a potential grievance, not a formal written contractual grievance. In this regard, the Respondent relies on U.S. Department of Justice, Bureau of Prisons, Federal Correctional Institution (Ray Brook, New York), 29 FLRA 584 (1987) (Ray Brook), aff'd, 865 F.2d 1283 (D.C. Cir. 1989).
Further, the Respondent asserts that the Judge erred in finding that the Union was following the informal steps of Article 31 (the grievance procedure) of the parties' agreement, and that the meeting was intended to be a response to a potential grievance. According to the Respondent, the evidence demonstrates that there was no attempt to informally resolve the matter with Eberle's first-line supervisor, as required by Article 31, and that management's intent at the meeting was only to counsel Eberle and Rosalez informally.
Finally, the Respondent contends that the Judge should not have found that it unlawfully bypassed or demeaned the Union and interfered with employees' rights. The Respondent argues that the Judge erred in relying on Department of Health and Human Services, Social Security Administration, Baltimore, Maryland and Social Security Administration, Region X, Seattle, Washington, 39 FLRA 298 (1991) (SSA, Region X).
B. General Counsel
The General Counsel disputes the Respondent's assertion that the Judge made findings on matters not alleged in the complaint or litigated at the hearing. The General Counsel asserts that the Respondent's distinctions between a potential grievance and a grievance are irrelevant, and that the undisputed facts make it clear that the Union was attempting to resolve a matter between Eberle and his supervisor and the Respondent denied representation to Eberle in its final attempt to resolve the matter.
The General Counsel also disputes the Respondent's claim that the meeting was a counseling session. According to the General Counsel, the Judge correctly found that the meeting went beyond counseling and was "formal" within the meaning of section 7114(a)(2)(A) because it was conducted by a third-level supervisor in his office in the presence of the second-level supervisor and concerned the very subject that had been raised with those supervisors by the Union.
Finally, the General Counsel asserts that the Judge correctly found that the Respondent unlawfully bypassed the Union.
IV. Analysis and Conclusions
A. The Issues Were Properly Framed by the Judge
We reject the Respondent's argument that the Judge "exceed[ed] his authority . . . by finding the Respondent committed an offense that was neither alleged in the complaint nor prosecuted at the hearing[.]" Exceptions at 1. For reasons stated below, we find that the potential grievance in this case constituted a grievance within the meaning of section 7114(a)(2)(A). As such, we agree with the General Counsel that the Respondent's distinctions between a potential grievance and a grievance in this case are irrelevant. Similarly, the facts that the complaint mentioned only a potential grievance and that the Judge stated that the complaint concerned a grievance are irrelevant. In these circumstances, we reject the Respondent's allegation that the Judge based his findings on an offense that was neither alleged nor litigated.
B. The May 18 Meeting Constituted a "Formal Discussion" Within the Meaning of Section 7114(a)(2)(A) of the Statute
In order for a union to have the right to representation under section 7114(a)(2)(A), all the elements of that section must exist. There must be: (1) a discussion; (2) which is formal; (3) between one or more representatives of the agency and one or more unit employees or their representatives; (4) concerning any grievance or any personnel policy or practice or other general condition of employment. General Services Administration, Region 9 and American Federation of Government Employees, Council 236, 48 FLRA 1348, 1354 (1994) (GSA I).
1. The Meeting Was a "Discussion"
The Judge's finding that the meeting constituted a "discussion" is consistent with Authority precedent. The Authority has held that "[t]he term 'discussion' in the Statute is synonymous with 'meeting,' and no actual discussion or dialogue need occur for the meeting to constitute a discussion within the meaning of the Statute." Veterans Administration, Washington, D.C. and VA Medical Center, Brockton Division, Brockton, Massachusetts, 37 FLRA 747, 754 (1990); Department of Defense, National Guard Bureau, Texas Adjutant General's Department, 149th TAC Fighter Group (ANG)(TAC), Kelly Air Force Base, 15 FLRA 529, 532-33 (1984). In agreement with the Judge, we find that the meeting constituted a discussion within the meaning of section 7114(a)(2)(A) of the Statute.
2. The Meeting Was "Formal"
In GSA I, the Authority held that:
In determining whether a discussion is formal within the meaning of section 7114(a)(2)(A), [the Authority has] advised that the totality of the circumstances presented must be examined, but 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 I, 48 FLRA at 1355. There is no dispute that the meeting was called by DeChene, Eberle's third-level supervisor, and was held in DeChene's office in the presence of Eberle's supervisor.(2) In addition, the record supports the Judge's findings that the meeting was not impromptu, but rather was scheduled, was relatively long, and had been directed by the Warden. These indicia of formality support the Judge's conclusion that the meeting was not an informal supervisor-employee counseling session and that the meeting met the requirements of section 7114(a)(2)(A) of the Statute.
Accordingly, we agree with the Judge that the May 18 meeting was formal within the meaning of section 7114(a)(2)(A) of the Statute.
3. The Meeting Concerned a Grievance Within the Meaning of Section 7114(a)(2)(A)
Section 7103(a)(9) of the Statute states, in part, that "grievance" means any complaint by any employee concerning any matter relating to the employment of the employee.(3) The Authority has concluded that "'grievance' under section 7114(a)(2)(A) should be interpreted in light of its broad definition in section 7103(a)(9) of the Statute." Ray Brook, 29 FLRA at 590. That is, the Authority has interpreted the term "grievance" broadly.
Article 31 of the parties' collective bargaining agreement (CBA) contains the procedures for processing employee grievances. Article 31, Section b provides that "[t]he parties . . . will always attempt informal resolution with the first line supervisor involved before filing a formal grievance." Judge's Decision at 2. Section 7121(b)(1)(C)(ii) of the Statute describes the right of the union as the right "to be present during the grievance proceeding[.]" When, as here, a grievance procedure in the parties' CBA requires that informal attempts be made to resolve a dispute before a formal or written grievance may be filed, it would be inconsistent with the intent of the Statute to find that the union is not entitled to be involved in the informal stages of the grievance procedure.(4)
As found by the Judge, the Union met with the Respondent twice prior to the meeting in an attempt, under the negotiated grievance procedure of the parties' CBA, to informally resolve the differences between Eberle and Rosalez over Eberle's work performance, a matter over which the Union stated to the Respondent it might file a grievance.(5) The subject matter of the May 18 meeting likewise concerned the differences between Eberle and Rosalez. We agree with the Judge that the meeting was not simply a counseling session, but was in response to the Union's efforts under the parties' CBA to informally resolve the differences which were the basis of the potential grievance. In these circumstances, we find that the potential grievance of Eberle and the Union was a grievance within the meaning of section 7114(a)(2)(A) of the Statute.(6) Accordingly, we find that the May 18 meeting concerned a grievance within the meaning of section 7114(a)(2)(A) of the Statute.
4. Summary
In sum, we find that the May 18 meeting was a discussion, which was formal, between one or more representatives of the Respondent and a bargaining unit employee concerning a grievance, within the meaning of section 7114(a)(2)(A) of the Statute. Therefore, by holding a formal discussion with a bargaining unit employee without affording the Union notice and an opportunity to be represented at the discussion, as required by section 7114(a)(2)(A), the Respondent violated section 7116(a)(1) and (8) of the Statute.
C. The Respondent Unlawfully Bypassed the Union by Denying It the Opportunity To Be Represented at the May 18 Meeting
In SSA, Region X, 39 FLRA at 311 (citations omitted), the Authority set forth the following principles:
Agencies unlawfully bypass an exclusive representative when they communicate directly with bargaining unit employees concerning grievances, disciplinary actions and other matters relating to the collective bargaining relationship. Such conduct constitutes direct dealing with an employee and is violative of section 7116(a)(1) and (5) of the Statute because it interferes with the union's rights under section 7114(a)(1) of the Statute to act for and represent all employees in the bargaining unit. Such conduct also constitutes an independent violation of section 7116(a)(1) of the Statute because it demeans the union and inherently interferes with the rights of employees to designate and rely on the union for representation.
Citing SSA, Region X, the Judge found that, by holding the May 18 meeting, the Respondent communicated directly with Eberle concerning Eberle's grievance. The Judge concluded that the Respondent's conduct interfered with the Union's rights under section 7114(a)(1) of the Statute to act for and represent all employees in the bargaining unit, and thereby violated section 7116(a)(1) and (5) of the Statute. The Judge also concluded that, by the same conduct, the Respondent demeaned the Union and inherently interfered with the rights of employees to designate and rely on the Union for representation, and thereby independently violated section 7116(a)(1) of the Statute. The Judge's findings and conclusions are consistent with SSA, Region X, 39 FLRA at 311-13. Accordingly, based on that decision, we conclude that, by communicating directly with Eberle concerning Eberle's grievance, the Respondent: (1) interfered with the Union's rights under section 7114(a)(1) of the Statute to act for and represent bargaining unit employees, thereby violating section 7116(a)(1) and (5) of the Statute; and (2) demeaned the Union and inherently interfered with the rights of bargaining unit employees to designate and rely on the Union for representation, thereby independently violating section 7116(a)(1) of the Statute.
V. Order
Pursuant to section 2423.29 of the Authority's Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, the U.S. Department of Justice, Bureau of Prisons, Federal Correctional Institution, Bastrop, Texas shall:
1. Cease and desist from:
(a) Conducting a formal discussion with any bargaining unit employee concerning any grievance or any personnel policy or practices or other general condition of employment without affording the American Federation of Government Employees, AFL-CIO, Local 3828 (the Union), the exclusive representative of certain of its employees, prior notice of and the opportunity to be represented at the formal discussion.
(b) Failing and refusing to bargain in good faith with the Union by bypassing the Union and communicating directly with a bargaining unit employee concerning a grievance.
(c) Interfering with the right of its employees to designate and rely on the Union to process their grievances through the negotiated grievance procedure.
(d) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their 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 prior notice and an opportunity to be represented to the American Federation of Government Employees, AFL-CIO, Local 3828, of 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.
(b) Post at its facilities where bargaining unit employees are located copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the Warden and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to ensure that such Notices are not altered, defaced, or covered by any other material.
(c) Pursuant to section 2423.30 of the Authority's Regulations, notify the Regional Director of the Dallas Region, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply.
NOTICE TO ALL EMPLOYEES
POSTED BY ORDER OF THE
FEDERAL LABOR RELATIONS AUTHORITY
The Federal Labor Relations Authority has found that the United States Department of Justice, Bureau of Prisons, Federal Correctional Institution, Bastrop, Texas violated the Federal Service Labor-Management Relations Statute and has ordered us to post and abide by this notice.
We hereby notify bargaining unit employees that:
WE WILL NOT conduct a formal discussion with any bargaining unit employee concerning any grievance or any personnel policy or practices or other general condition of employment without affording the American Federation of Government Employees, AFL-CIO, Local 3828 (the Union), the exclusive representative of bargaining unit employees, prior notice of and the opportunity to be represented at the formal discussion.
WE WILL NOT fail and refuse to bargain in good faith with the Union by bypassing the Union and communicating directly with a bargaining unit employee concerning a grievance.
WE WILL NOT interfere with the right of employees to designate and rely on the Union to process their grievances through the negotiated grievance procedure.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.
WE WILL provide prior notice and an opportunity to be represented to the American Federation of Government Employees, AFL-CIO, Local 3828, of 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.
________________________
(Activity)
Date: ___________ By: ______________________________
(Signature) (Title)
This Notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material.
If employees have any questions concerning this Notice or compliance with its provisions, they may communicate directly with the Regional Director, Dallas Regional Office, Federal Labor Relations Authority, whose address is: Federal Office Building, 525 Griffin Street, Suite 926, LB 107, Dallas, TX
75202-1906, and whose telephone number is: (214) 767-4996.
UNITED STATES OF AMERICA
FEDERAL LABOR RELATIONS AUTHORITY
OFFICE OF ADMINISTRATIVE LAW JUDGES
WASHINGTON, D.C. 20424-0001
| BUREAU OF PRISONS
FEDERAL CORRECTIONAL INSTITUTION BASTROP, TEXAS Respondent |
|
| and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 3828 Charging Party |
|
Steven R. Simon
Counsel for the Respondent
Christopher J. Ivits
Charlotte A. Dye
Counsel for the General
Counsel
Before: GARVIN LEE OLIVER
Administrative Law Judge
DECISION
Statement of the Case
The unfair labor practice complaint alleges that Respondent violated section 7116(a)(1), (5), and (8) of the Federal Service Labor-Management Relations Statute, 5 U.S.C. §§ 7116(a)(1), (5), and (8), when it bypassed the Union by meeting directly with an employee on a grievance and by holding a formal discussion with the same employee without providing the Union with notice and an opportunity to be present.
Respondent's answer admitted the jurisdictional allegations as to Respondent, the Union, and the charge, but denied any violation of the Statute. Respondent alleged that the meeting was a brief, informal counseling session.
A hearing was held in Austin, Texas. The Respondent and the General Counsel were represented by counsel 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 helpful briefs. Based on the entire record, including my observation of the witnesses and demeanor, I make the following findings of fact, conclusions of law, and recommendations.
Findings of Fact
On May 11, 1992, John Eberle, Jr., a bargaining unit employee, met with his second-level supervisor, Ray Rosalez, on three occasions. Each meeting was somewhat confrontational and concerned Eberle's assignments, leave, and time used for collateral duties. Eberle felt intimidated and threatened and understood from Rosalez' remarks that Rosalez intended to deny Eberle already-approved leave and give him a negative evaluation.
Because of his escalating problems with Rosalez, Eberle discussed the matter with Pam Clampit, Union President. Clampit explained that under the grievance procedure contained in the negotiated agreement they must first attempt an informal resolution.
Article 31 of the parties' negotiated agreement provides, in part, as follows:
ARTICLE 31 - GRIEVANCE PROCEDURES
Section a. The purpose of this Article is to provide employees with a fair and expeditious procedure covering all grievances properly grievable under 5 USC 7121.
Section b. The parties strongly endorse the concept that grievances should be resolved informally and will always attempt informal resolution with the first line supervisor involved before filing a formal grievance.
Section c. A grievance may only be pursued to arbitration by the Employer or the Union. However, any employee in the unit may present a grievance to the Employer and have it adjusted without the intervention of the Union, as long as the adjustment is not inconsistent with the terms of this Agreement and the Union is given the opportunity to be present at the adjustment on official time. The Employer shall provide a copy of any written grievance response to the Union.
Section d. If efforts at informal resolution prove unsuccessful, a formal grievance may be filed within thirty (30) calendar days. . . . The grievance must be filed on a Federal Bureau of Prisons' "Formal Grievance Form" and must be signed by the grievant. . . .
Since Mr. Rosalez was a department head, Ms. Clampit decided to attempt informal resolution with the Warden. She had previously dealt with Associate Warden Larry Craven and Associate Warden Robert DeChene in an effort to resolve issues concerning Mr. Rosalez. Ms. Clampit made an appointment with Acting Warden Larry Craven for May 12, 1992.
On May 12, 1992, Union president Clampit and Mr. Eberle met with Acting Warden Craven and Associate Warden DeChene. At the outset of the meeting Clampit informed Mr. Craven and Mr. DeChene that they were there to see them about a problem between Rosalez and Eberle. She told them that she was representing Eberle as a Union member and that there was a possibility of filing a grievance over the matter. Clampit informed Craven and DeChene that there had been ongoing problems with Rosalez; that on three previous occasions they had informally resolved such problems; and that something needed to be done about it.
During the meeting, Eberle detailed what had occurred and presented to Craven and DeChene a letter resigning from his collateral duties. Eberle and Clampit explained that Rosalez had threatened Eberle's appraisal and informed him that he had spent too much time on collateral duties. Eberle explained that he intended to file a grievance over the matter. Both Craven and DeChene refused to accept the letter and said that they would look into the matter.
Having not heard anything back from DeChene or Craven, on May 14, 1992, the Union, by Ed Huckman, Chief Steward, set up a meeting with Warden Billy R. Hedrick, Eberle, and himself. At the outset of the meeting, Huckman made it clear that he and Eberle were there to resolve a problem and Huckman was there in his capacity as a Union representative. Warden Hedrick listened to Eberle's and Huckman's complaint and concerns about Rosalez and said he would look into the matter.
Warden Hedrick later talked with Mr. Rosalez and concluded that there was just a disagreement between Rosalez and Eberle over what had occurred at their meeting. He directed Associate Warden DeChene to meet with them on May 18, 1992.
On May 18, 1992, Eberle was informed by his immediate supervisor, Gary Chandler, that he was to report to Associate Warden DeChene's office. DeChene is Eberle's third-level supervisor. Eberle's presence at the meeting was mandatory. On the way to DeChene's office, Eberle stopped by Clampit's office and told her about the meeting and asked her to be ready in case he needed Union representation. The Union had not been given notice of, or an opportunity to attend, the meeting.
When Eberle arrived at DeChene's office, Rosalez was present. Eberle asked if the meeting was in reference to the ongoing problem and requested Union representation. DeChene told Eberle he did not need Union representation and that he (DeChene) would do all the talking. Eberle repeated his request for Union representation, but was told by DeChene that it was not a formal discussion, as he just wanted to counsel both of them concerning their behavior.
The meeting proceeded with DeChene informing both Eberle and Rosalez that he felt the whole matter was childish, that the two of them should quit acting like children, go back to their work sites, act like men, and get about their business. Eberle remained quiet throughout the meeting, which lasted 25-30 minutes. No notes were taken during the meeting, but it was clear that there was a purpose or agenda to the meeting as the entire meeting concerned the conflict between Eberle and Rosalez.
Later in the day, Clampit and Eberle went to see Warden Hedrick to determine the status of their allegations concerning Rosalez. Hedrick informed them that Eberle had had a meeting with DeChene that morning, and, as far as he was concerned, that was his response, and the matter was closed.
On June 4, 1992, the Union filed a "Formal Grievance" under the collective bargaining agreement on behalf of Mr. Eberle concerning Mr. Rosalez' conduct on May 11, 1992. Warden Hedrick advised Ms. Clampit on June 12, 1992 that the incident had been referred to the Office of Internal Affairs for investigation, and he could not comment further on the matter at that time. On November 2, 1992, Mr. Hedrick advised Mr. Eberle that, based on the Office of Internal Affairs investigation, "the claim of public demeaning and chastisement is unsupported."
Discussion and Conclusions
The General Counsel contends that Respondent violated section 7116(a)(l), (5), and (8) of the Statute by holding a formal meeting with the employee without affording the Union the opportunity to be present and by bypassing the Union and dealing directly with an employee regarding a matter in which he was being represented by the Union.
Respondent defends on the basis that the meeting was a simple counseling session to address a personality conflict between a supervisor and an employee to achieve efficiency in the workplace. Respondent points out that the meeting was held in response to an informal complaint, no questions were asked, and no response was elicited from the employee.
Formal Discussion
Section 7114(a)(2)(A) of the Statute provides:
(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 repre-sentatives concerning any grievance or any personnel policy or practices or other general condition of employment[.]
In order for a union to have a right to representation under the Statute, all the elements of section 7114(a)(2)(A) must exist. There must be: (1) a discussion; (2) which is formal; (3) between one or more representatives of the agency and one or more unit employees or their representatives; (4) concerning any grievance or any personnel policy or practice or other general condition of employment. General Services Administration, Region 9 and American Federation of Government Employees, Council 236, 48 FLRA 1348, 1354 (1994) (GSA). In determining whether the elements of section 7114(a)(2)(A) exist in a particular case, the Authority is guided by the intent and purpose of the section to provide the union with an opportunity to safeguard its interests and the interests of unit employees viewed in the context of the union's full range of responsibilities under the Statute. Id. at 1355.
The Authority has held that the term "discussion" is synonymous with "meeting," and no actual discussion or dialogue need occur for the meeting to constitute a discussion within the meaning of the Statute. Veterans Administration, Washington, D.C. and VA Medical Center, 37 FLRA 747, 754 (1990); Department of Defense, National Guard Bureau, Texas Adjutant General's Department, 149th TAC Fighter Group (ANG)(TAC), Kelly Air Force Base, 15 FLRA 529, 532-33 (1984). Accordingly, I conclude that there was a discussion within the meaning of the Statute.
In determining whether a discussion is formal within the meaning of section 7114(a)(2)(A), the Authority has held that the totality of the circumstances presented must be examined, but 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.
In this case, the meeting was held by the employee's third-level supervisor, Associate Warden DeChene. It was attended by the employee's second-level supervisor, Ray Rosalez. The meeting was held in Mr. DeChene's office, away from the employee's worksite. Employee Eberle was told to report to DeChene's office by his first-level supervisor; his attendance was mandatory. The meeting was relatively long, lasting 25-30 minutes. The meeting was not impromptu or casual, but was directed by Warden Hedrick to be held to respond to the employee's complaint. It was planned by Associate Warden DeChene to counsel both Eberle and his second-level supervisor concerning their behavior and what they should do to resolve the matter.
The legislative history of the Statute makes clear that "this subsection does not require that an exclusive representative be present during highly personal, informal meetings such as counseling sessions regarding performance. . . ." Legislative History of the Federal Service Labor-Management Relations Statute, Title VII of the Civil Service Reform Act of 1978, 96th Cong., 1st Sess., Comm. Print No. 96-7, p. 957. I conclude that this was not the type of "highly personal, informal counseling session regarding performance" contemplated by the legislative history. The meeting was not "highly personal" to the employee. It involved a matter of expressed Union concern and was conducted by a third-level supervisor and attended by the second-level supervisor, the subject of the employee's complaint. Nor was it a normal supervisor-employee counseling session. It was intended to be a response to the informal grievance.
Based on these factors, and the totality of the circumstances, I conclude that the discussion was formal.
The record also establishes that the meeting was held between a representative of the agency and the employee and concerned a grievance. Section 7103(a)(9) of the Statute pertinently defines "grievance" as "any complaint . . . by any employee concerning any matter relating to the employment of the employee[.]" The Authority does not limit the term "grievance" in section 7114(a)(2)(A) to a complaint under the negotiated grievance procedure, GSA, 48 FLRA at 1355. However, in this case, the informal resolution of the employee's complaint about the actions of his second-level supervisor was attempted by the employee and the Union pursuant to Article 31, Sections a, b, and d of the negotiated grievance procedure.
It is concluded that Mr. Eberle's meeting with Associate Warden DeChene on May 18, 1992 constituted a formal discussion pursuant to section 7114(a)(2)(A) of the Statute at which the Union should have been given the opportunity to be represented. By Respondent's failure to comply with section 7114(a)(2)(A), it committed an unfair labor practice in violation of section 7116(a)(1) and (8), as alleged.
Bypass
Agencies unlawfully bypass an exclusive representative when they communicate directly with bargaining unit employees concerning grievances, disciplinary actions, and other matters relating to the collective bargaining relationship. Such conduct constitutes direct dealing with an employee and is violative of section 7116(a)(1) and (5) of the Statute because it interferes with the union's rights under section 7114(a)(1) of the Statute to act for and represent all employees in the bargaining unit. Such conduct also constitutes an independent violation of section 7116(a)(1) of the Statute because it demeans the union and inherently interferes with the rights of employees to designate and rely on the union for representa- tation. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, and Region X, Seattle, Washington, 39 FLRA 298, 311 (1991).
Respondent's conduct in this case constituted an unlawful bypass of the Union. At the direction of Warden Hedrick, Associate Warden DeChene communicated directly with bargaining unit employee Eberle concerning his grievance. Both Warden Hedrick and Associate Warden DeChene knew of the Union's representation of Mr. Eberle and its concern regarding his complaint. The Union mentioned that it had brought three similar complaints to their attention and something needed to be done. Associate Warden DeChene counseled both Mr. Eberle and Mr. Rosalez to "quit acting like children" and "resolve their differences among themselves as men, as mature individuals, as professionals." The fact that this May 18, 1992 meeting was designed to resolve Mr. Eberle's complaint was made clear by the Warden, who, after being asked by Eberle and the Union president for the status of the informal grievance, informed them that Eberle's meeting with DeChene was the Respondent's answer.
Respondent's conduct in dealing directly with Mr. Eberle concerning his grievance interfered with the Union's rights under section 7114(a)(1) of the Statute to act for and represent all employees in the bargaining unit. Such conduct also constituted an independent violation of section 7116(a)(1) of the Statute because it demeaned the Union and inherently interfered with the rights of employees to designate and rely on the Union for representation.
Based on the foregoing findings and conclusions, it is recommended that the Authority issue the following order:
ORDER
Pursuant to section 2423.29 of the Federal Labor Relations Authority's Rules and Regulations and section 7118 of the Statute, it is hereby ordered that the Bureau of Prisons, Federal Correctional Institution, Bastrop, Texas shall:
1. Cease and desist from:
(a) Conducting a formal discussion with an employee in the bargaining unit concerning any grievance or any personnel policy or practices or other general condition of employment without affording the American Federation of Government Employees, AFL-CIO, Local 3828 (Union), the exclusive representative of certain of its employees, prior notice and an opportunity to be represented at the formal discussion.
(b) Failing and refusing to bargain in good faith with the American Federation of Government Employees, AFL-CIO, Local 3828, the exclusive representative of certain of its employees, by bypassing the Union and communicating directly with a bargaining unit employee concerning a grievance.
(c) Interfering with the right of employees to designate and rely on the Union to process their grievances through the negotiated grievance procedure.
(d) In any like or related manner interfering with, restraining or coercing its employees in the exercise of their 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 prior notice and an opportunity to be represented to the American Federation of Government Employees, AFL-CIO, Local 3828, of 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.
(b) Post at its facilities copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed, by the Warden and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that such Notices are not altered, defaced, or covered by any other material.
(c) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director of the Dallas Region, Federal Labor Relations Authority, Federal Office Building, 525 Griffin Street, Suite 926, Dallas, TX 75202-1906, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply herewith.
Issued, Washington, DC, March 18, 1994
___________________________
GARVIN LEE OLIVER
Administrative Law
Judge
NOTICE TO ALL EMPLOYEES
AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY
AND TO EFFECTUATE THE POLICIES OF THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT conduct a formal discussion with an employee in the bargaining unit concerning any grievance or any personnel policy or practices or other general condition of employment without affording the American Federation of Government Employees, AFL-CIO, Local 3828 (Union), the exclusive representative of certain of our employees, prior notice and an opportunity to be represented at the formal discussion.
WE WILL NOT fail and refuse to bargain in good faith with the American Federation of Government Employees, AFL-CIO, Local 3828, the exclusive representative of certain of our employees, by bypassing the Union and communicating directly with a bargaining unit employee concerning a grievance.
WE WILL NOT interfere with the right of employees to designate and rely on the Union to process their grievances through the negotiated grievance procedure.
WE WILL NOT in any like or related manner interfere with, restrain or coerce our employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.
WE WILL provide prior notice and an opportunity to be represented to the American Federation of Government Employees, AFL-CIO, Local 3828, the exclusive representative of certain of our employees, of 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.
________________________________
(Activity)
Date:______________ By:_________________________________
(Signature) (Title)
This Notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced or covered by any other material.
If employees have any questions concerning this Notice or compliance with any of its provisions, they may communicate directly with the Regional Director of the Federal Labor Relations Authority, Dallas Region, Federal Office Building, 525 Griffin Street, Suite 926 LB 107, Dallas, TX 75202-1906, and whose telephone number is: (214) 767-4996.
FOOTNOTES:
(If blank, the decision does not
have footnotes.)
1. The Respondent also filed a request to correct an inconsistency in its brief in support of exceptions and a motion to correct discrepancies in the record. No opposition to the request or the motion was filed. The request and the motion are granted.
2. No party argues that the May 18 meeting was not "between one or more representatives of the agency and one or more unit employees or their representatives," as required by the third element of section 7114(a)(2)(A).
3. Section 7103(a)(9) of the Statute provides:
(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[.]
4. See Internal Revenue Service, Fresno Service Center, Fresno, California v. FLRA, 706 F.2d 1019, 1024 (9th Cir. 1983), in which the court described the rights of the union under section 7114 as follows:
As exclusive representative, the union has responsibility for administering the collective bargaining agreement and has an obvious interest in being present when a dispute governed by the grievance procedure it negotiated is discussed or resolved.
5. As noted by the Judge, these attempts were made by the Union, as it had in the past, at higher levels of supervision because the differences involved Eberle's second-line supervisor. Therefore, there was no "first line supervisor involved," as contemplated by Article 31, Section B of the parties' CBA.
6. Ray Brook does not support the Respondent's argument that a "potential grievance" cannot be found to constitute a "grievance" within the meaning of section 7114(a)(2)(A). Ray Brook involved the personal right of an employee during the oral reply procedures of an adverse action governed by 5 U.S.C. § 7513. Those procedures are not relevant in this case, which involves contractually mandated procedures applicable before grievances are filed.