FEDERAL LABOR RELATIONS AUTHORITY STATUTORY TRAINING PROGRAM

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FEDERAL LABOR RELATIONS AUTHORITYSTATUTORY
TRAINING PROGRAM

• Meetings with Unit Employees
• Jean M. Perata
• Deputy Regional Director
• FLRA, S.F. Region
• jperata_at_flra.gov 415.356.5000, ext. 2012

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STATUTORY PROVISION

• 5 U.S.C. 7114(a)(2)(A) (B) provide the union
  the opportunity to be represented at
• Formal Discussions
• Investigative Examinations (Weingarten interviews)

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FORMAL DISCUSSIONS

• Section 7114(a)(2)(A) provides An exclusive
  representative of an appropriate unit in an
  agency shall be given the opportunity to be
  represented at
• 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

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FORMAL DISCUSSIONS

• Two elements must be present
• Formality
• AND
• Subject matter

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ADVANCE NOTICE

• A union is entitled to advance notice of a formal
  discussion so it can decide whether to attend
  and, if so, to designate a representative of its
  own choice to attend the meeting.
• Exception
• Union has actual notice, and
• Appropriate representative had opportunity to
  attend meeting.
• Dept of the Air Force, Sacramento Air
  Logistics Ctr., McClellan Air Force Base, Cal.,
  29 FLRA 594 (1987) see also GSA, Reg. 9, L.A.,
  Cal., 56 FLRA 683 (2000)

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FORMALITY

• The level of supervisory or management officials
  conducting the meeting
• Whether other supervisors or management officials
  attended
• How long the meeting lasted
• How the meeting was called
• Where the meeting was held
• Whether a formal agenda was established for the
  meeting
• Whether attendance was mandatory
• Were notes taken or a record made of the meeting
  
• The subject matter addressed during the meeting
  and
• The manner in which the meeting was conducted.
• F.E. Warren Air Force Base, Cheyenne, Wyo., 52
  FLRA 149 (1996) Dept of HHS, SSA, Bureau of
  Field Operations, S.F., Cal., 10 FLRA 115 (1982).

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SUBJECT MATTER

• Grievance
• Personnel policy or practice or
• General condition of employment.

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SUBJECT MATTER TEST MET

• Grievance meeting under negotiated grievance
  procedure.
• U.S. DOJ, INS, N.Y. Office of Asylum, Rosedale,
  N.Y., 55 FLRA 1032 (1999)
• Interview in preparation for an arbitration
  hearing or ULP hearing. Dept of the Air Force,
  F. E. Warren Air Force Base, Cheyenne, Wyo., 31
  FLRA 541 (1988).
• Mediation session in a formal EEO complaint,
  filed by a unit employee. U.S. Dept of
  Agriculture, Forest Serv., Los Padres National
  Forest, Goleta, Calif., 60 FLRA 644 (2005)
• Meeting to discuss policies and procedures
  concerning annual leave. U.S. DOD, Def, Logist.
  Ag., Def. Depot Tracy, Tracy, Cal., 37 FLRA 952
  (1990)

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SUBJECT MATTER TEST NOT MET

• Counseling session with employee and supervisor.
• F. E. Warren Air Force Base, Cheyenne, Wyo.,
  52 FLRA 149 (1996).
• Meeting to inform two employees of a temporary
  reassignment in duties.
• Bureau of Field Operations, SSA, S.F., Cal.,
  20 FLRA 80 (1985)
• Discussion limited to manner in which four
  specific employees reported their productivity.
• U.S. GPO, Pub. Documents Distrib. Ctr., Pueblo,
  Colo., 17 FLRA 927 (1985)

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EXAMINATIONS (WEINGARTEN)

• Section 7114(a)(2)(B) of the Statute entitles the
  union to be given the opportunity to be
  represented at an examination of an employee in
  connection with an investigation if
• The employee reasonably believes that
  disciplinary action may result against the
  employee AND
• The employee requests representation.
• Fed. Bureau of Prisons, OIA, Wash., D.C.
  Fed. Bureau of Prisons, OIA, Aurora, Colo. Fed.
  Bureau of Prisons, OIA, Littleton, Colo., 54 FLRA
  1502 (1998) NLRB v. Weingarten, Inc., 420 U.S.
  251 (1975)

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REQUEST FOR REPRESENTATION

• The totality of the circumstances must be
  sufficient to put the agency on notice of the
  employees desire for representation.
• U.S. DOJ, Fed. Bureau of Prisons, OIA, Wash.,
  D.C., 55 FLRA 388 (1999)

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IF ELEMENTS ARE MET

• Agency must
• Grant the request for representation
• Discontinue the interview or
• Offer the employee the choice between continuing
  the interview unaccompanied by a union
  representative or having no interview at all.
• Norfolk Naval Shipyard, Portsmouth, Va., 35
  FLRA 1069 (1990)

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LIMITS ON UNIONS RIGHT TO DESIGNATE REP

• Agency may reject a particular representative
  where it can demonstrate special circumstances,
  such as to preserve the integrity of the
  investigation. Fed. Bureau of Prisons, OIA,
  Wash., D.C. Fed. Bureau of Prisons, OIA,
  Aurora, Colo. Fed. Bureau of Prisons, OIA,
  Littleton, Colo., 54 FLRA 1502 (1998)
• Agency need not postpone examination to allow an
  employee to be represented by a particular union
  official if another is available. INS, N.Y.
  Dist. Office, 46 FLRA 1210 (1993)

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AN EXAMINATION INCLUDES

• Meeting to discuss inconsistencies in employees
  written and oral statements to management. U.S.
  DOJ, Bur. Of Prisons, Metro. Correct. Ctr., N.Y.,
  N.Y., 27 FLRA 874 (1987)
• Requiring employees to prepare written memos
  designed to elicit information and have employees
  explain conduct. U.S. INS, U.S. Border Patrol,
  Del Rio, Tex., 46 FLRA 363 (1992)
• Interview of employee who was not subject of
  investigation but had reasonable basis to fear
  discipline. IRS, Wash., D.C. IRS, Hartford,
  Dist. Office, 4 FLRA 237 (1980), enforced, IRS
  v. FLRA, 671 F.2d 560 (D.C. Cir. 1982)

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AN EXAMINATION DOES NOT INCLUDE

• Meeting solely concerned with an employees
  performance evaluation.
• IRS, Detroit, Mich., 5 FLRA 421(1981)
• Meeting called to counsel an employee.
• Dept of Treasury, IRS, 15 FLRA 360 (1984)
• Meeting limited to informing an employee of a
  decision already reached.
• U.S. Air Force, 2750 Air Base Wing Hdqtrs., Air
  Force Logistics Command, Wright-Patterson Air
  Force Base, Ohio, 9 FLRA 871 (1982)

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BYPASS

• Dealing directly with unit employees concerning
  any matter affecting the employees conditions of
  employment. AFGE, Natl Council of HUD
  Locals 222, 54 FLRA 1267 (1998)
• Dealing directly with employees interferes with
  the unions rights under 7114(a)(1) of the
  Statute to act for . . . all employees in the
  unit, and violates 7116(a)(1) and (5) of the
  Statute.
• U.S. DOJ, Bureau of Prisons, FCI, Bastrop, Tex.,
  51 FLRA 1339 (1996)

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BYPASS OCCURS WHEN

• An agency communicates directly with bargaining
  unit employees
• Concerning grievances, disciplinary actions where
  the agency knows the employee is represented by
  the union, or
• Other matters relating to the collective
  bargaining relationship.
• FCI, Bastrop, Tex., 51 FLRA 1339 (1996)
  Dept of HHS, SSA, Balt., Md. SSA, Reg. X,
  Seattle, Wash., 39 FLRA 298 (1991)

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ACTIONS HELD TO BE A BYPASS

• Providing a disciplinary decision to employee
  rather than the union representative who
  represented employee.
• Dept of the Air Force, Sacramento Air
  Logist. Ctr., McClellan AFB, Cal., 35 FLRA 345
  (1990) 438th Air Base Group (MAC), McGuire AFB,
  N.J., 28 FLRA 1112 (1987)
• Communicating with an employee regarding a
  grievance that falls within the scope of the
  negotiated grievance procedure, when the Union
  had been representing the employee in the matter.
• U.S. DOJ, INS, N.Y. Office of Asylum, Rosedale,
  N.Y., 55 FLRA 1032 (1999)
• Negotiating a change in working conditions
  directly with an employee.
• SSA, 55 FLRA at 978 (1999) Air Force
  Accounting and Fin. Ctr., Lowry Air Force Base,
  Denver, Colo., 42 FLRA 1226 (1991)

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ACTIONS HELD NOT TO BE A BYPASS

• Polling Management may directly solicit
  information from employees about its operations,
  so long as it does not attempt to use a poll or
  survey to bargain directly with them about
  matters subject to bargaining with the union.
  Dept of Treasury, IRS, Wash., D.C., 31 FLRA 832
  (1988).
• Agency dealings with employees where a union has
  no statutory rights do not constitute direct
  dealing in violation of the Statute. U.S. GPO,
  23 FLRA 35 (1986) (EEO complaint with personal
  representative who was not also a union
  representative).