Click here to view the decision.
57 FLRA No. 166
U. S, Department of Energy, Rocky Flats Field Office, Golden, Colorado and AFGE, Local 1103, Case No. DE-CA-90894 (Decided April 30, 2002)
The complaint alleged that the Respondent violated § 7116(a)(1) and (8) of the Federal Service Labor-Management Relations 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. The Authority reversed the Judge's determination that the Respondent violated the Statute and dismissed the complaint.
The Authority explained that 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. 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.
The determination as to whether a discussion is formal is based on the totality of the circumstances presented. In making that determination, the Authority 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.
In this case, the Authority concluded that the totality of the circumstances demonstrated that the discussions were not formal. In reaching this conclusion, the Authority found significant that the discussions were not initiated by management, but by the employee, who visited the EEO Representative in an impromptu manner. The Authority noted that 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 concerned. Consequently, the Respondent could not provide the Charging Party with advance notice that the discussions would take place. The Authority further noted that it has not previously found such impromptu, employee-initiated discussions to constitute formal discussions within the meaning of § 7114(a)(2)(A) of the Statute. Further, the discussions involved only one representative of the Respondent, who was not the 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.