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29 FLRA No. 52

U.S. DEPARTMENT OF JUSTICE
BUREAU OF PRISONS
FEDERAL CORRECTIONAL INSTITUTION
(RAY BROOK, NEW YORK)

               Respondent

     and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 3882

                       Charging Party

Case No. 1-CA-60280

DECISION AND ORDER

I. Statement of the Case

This unfair labor practice case is before the Authority under section 2429.1(a) of the Authority's Rules and Regulations based on a stipulation of facts entered into by the Respondent, the Charging Party, and the General Counsel. The General Counsel and the Respondent have filed briefs. The complaint alleged that the Respondent failed to comply with section 7114(a)(2)(A) of the Federal Service Labor - Management Relations Statute (the Statute) in violation of section 7116(a)(1) and (8) of the Statute by conducting a meeting with a bargaining unit employee and his attorney in which the employee made an oral reply to Respondent's proposed 30-day suspension without affording the Union an opportunity to be represented. The issue before the Authority is whether that meeting was a formal discussion within the meaning of section 7114(a)(2)(A) of the Statute. For the reasons which follow we conclude that the Respondent did not commit an unfair labor practice.

II. Facts

The American Federation of Government Employees, Council of Prison Locals, AFL - CIO (AFGE) is the exclusive representative of a nationwide unit of employees of the [PAGE] Respondent, Department of Justice, Bureau of Prisons. The Charging Party, AFGE Local 3882, is the authorized agent of AFGE for the purpose of representing Respondent's employees at the Federal Correctional Institution, Ray Brook, New York.

On December 9, 1985, bargaining unit employee Yvon Bien-Aime was given notice of a proposed 30-day suspension. The notice informed Bien-Aime of the opportunity to reply as provided in 5 U.S.C. 7513(b). Bien-Aime submitted a written response to the charges on December 23, 1985. Prior to that date, Bien-Aime, in cooperation with his legal counsel, scheduled a meeting with the following representatives of the Respondent: T.M. Szulanczyk, Personnel Officer; John T. Hadden, Warden; and Allen Syrup, Superintendent of Industries, UNICOR. 1 The meeting was scheduled for January 10, 1986 in the Warden's office. The purpose of the meeting was to allow Bien-Aime to make an oral reply to the proposed adverse action pursuant to his right under 5 U.S.C. 7513(b).

The meeting was held as scheduled in the Warden's office and lasted from 10:15 a.m. until 11:00 a.m. The parties stipulate that the meeting was jointly scheduled in advance by the Respondent and Bien-Aime's legal counsel; that insofar as the meeting was called for the purpose of allowing Bien-Aime to present an oral reply to the proposed adverse action, a formal agenda was established; that the Respondent was represented by the Warden, the Personnel Officer, and the Superintendent of Industries, UNICOR (Bien-Aime's second-level supervisor); and that the Personnel Officer took notes which served as the basis for the official record of the proceedings. The record was placed in Bien-Aime's file in this matter. The Respondent did not provide the Union with an opportunity to be represented at the meeting.

The Warden began the meeting by restating the charges made in the December 9 notice. During the meeting, Bien-Aime, with the assistance of counsel, presented his complaints concerning the proposed suspension. The Warden concluded the meeting by advising Bien-Aime that he understood Bien-Aime's concerns and that he would make a determination on the matter as soon as possible.

Based on Bien-Aime's written response and his oral reply, the Warden determined not to suspend Bien-Aime. Rather, he issued Bien-Aime an official letter of reprimand [ v29 p2 ] on January 21, 1986. Bien-Aime filed a grievance over the letter of reprimand under the negotiated grievance procedure on February 12, 1986, using the Union as his representative in the grievance.

The parties' stipulation contains the following statement:

The Respondent proposed an action against Bien-Aime within the meaning of 5 USC 7513 but Bien-Aime could not formally elect the statutory appeals procedure in this matter since the Respondent had not taken any final action against Bien-Aime within the meaning of 5 USC 7513. The action subsequently taken against Bien-Aime by the Respondent was an official letter of reprimand issued on January 21, 1986 which is not an adverse action within the meaning of 5 USC 7512. This reduced penalty was not subject to a 5 USC 7121(d) election of process. (Emphasis in original.)

III. Positions of the Parties

A. The General Counsel

The General Counsel contends that the meeting in question satisfied all of the required elements for a formal discussion under section 7114(9)(2)(A) of the Statute. Relying on the Authority's decision in Department of Defense, National Guard Bureau, Texas Adjutant General's Department, 149th TAC Fighter Group (ANG) (TAC), Kelly Air Force Base, 15 FLRA 529 (1984), the General Counsel argues that it was not necessary to establish that an actual discussion or dialogue took place at a meeting held between management representatives and bargaining unit employees if the other elements of a formal discussion are satisfied. Based on this case, the General Counsel asserts that the meeting was a "discussion" under section 7114(a)(2)(A) of the Statute.

The General Counsel also contends that applying the factors set forth in the stipulated record the meeting was a "formal" discussion under section 7114(a)(2)(A) of the Statute. The General Counsel argues that the fact that the meeting was arranged at Bien-Aime's request is outweighed by the other strong indicators of formality and by the fact that any "grievance" meeting normally is initiated by the affected employee.

The final element in dispute is, according to the General Counsel, whether or not the meeting concerned a "grievance" within the meaning of section 7114(a)(2)(A). [ v29 p3 ]

The General Counsel concedes that based on the Authority's decision in Bureau of Government Financial Operations, Headquarters, 15 FLRA 423 (1984), the meeting could be construed as concerning a statutory appeal and thus would be outside the definition of "grievance" within the meaning of section 7114(a)(2)(A). However, the General Counsel contends that the decision of the United States Court of Appeals for the District of Columbia Circuit in National Treasury Employees Union v. FLRA, 774 F.2d 1181 (D.C. Cir. 1985), which reversed the Authority's decision in Bureau of Government Financial Operations, should be controlling in this case.

The General Counsel asserts that section 7114(a)(2)(A) was designed to provide an exclusive representative with an opportunity to protect the interests of the bargaining unit and that the role of the exclusive representative extends beyond the issues raised in a negotiated grievance procedure. The General Counsel argues that the Union had an interest here because: (1) the complaints raised by Bien-Aime at the meeting were indistinguishable from the type of complaints commonly raised under a negotiated grievance procedure; (2) even if the final action had been subject to a statutory appeal, Bien-Aime could have elected to grieve it under the negotiated grievance procedure; and (3) Bien-Aime eventually grieved the reprimand which he ultimately received. In sum, the General Counsel asserts that section 7114(a)(2)(A) of the Statute must be read consistent with the D.C. Circuit's decision in NTEU v. FLRA to find that the meeting here concerned a "grievance."

B. The Respondent

The Respondent contends that the meeting in question was not a formal discussion under section 7114(a)(2)(A). The Respondent argues that the meeting was not a "discussion" because it was limited to a presentation by the employee's attorney and did not involve any attempt by management to deal or negotiate directly with bargaining unit employees or to place pressure on the Union. Further, the Respondent contends that the meeting did not concern personnel policies, practices, or general working conditions, because the subject of the meeting, a reply to a disciplinary matter, was personal to Bien-Aime. The Respondent also argues that the meeting did not concern a "grievance" because: (1) the disciplinary action was only proposed and, therefore, was at a "pre-grievance, pre-action stage"; and (2) the employee's actions indicated an election of the statutory process. Respondent's Statement of Position at 3. Therefore, the [ v29 p4 ] Respondent contends that this case is controlled by the Authority's decision in Bureau of Government Financial operations.

The Respondent concedes that Bureau of Government Financial Operations was reversed in NTEU v. FLRA. However, the Respondent notes that in issuing its Supplemental Decision and Order in Bureau of Government Financial operations, 21 FLRA No. 69 (1986), the Authority accepted the court's decision only as the law of the case. The Respondent disagrees with the court's interpretation of section 7114(a)(2)(A) in NTEU v. FLRA, relying instead on the decision of United States Court of Appeals for the Ninth Circuit in Internal Revenue Service, Fresno Service Center, Fresno, California v. FLRA, 706 F.2d 1019 (9th Cir. 1983). The Respondent views the Ninth Circuit's decision as construing the term "grievance" in section 7114(a)(2)(A) to include only disputes governed by a negotiated procedure. The Respondent urges that the term "grievance" in section 7114(a)(2)(A) be limited to matters over which a complaint has been initiated in the negotiated grievance procedure.

IV. Analysis

For the reasons which follow, we conclude that the January 10 "oral reply" meeting did not constitute a formal discussion within the meaning of section 7114(a)(2)(A) of the Statute. However, our reasoning in reaching this conclusion involves a departure from some of the principles established by the Authority in its initial decision in Bureau of Government Financial Operations. We therefore take this opportunity to discuss fully the intent and application of section 7114(a)(2)(A) of the Statute.

A. Analytical framework of section 7114(a)(2)(A)

Section 7114(a)(2)(A) provides that an exclusive representative shall be given an 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 condition of employment. As the Authority has held, "(i)n order for a union's right under section 7114(a)(2)(A) to attach, all of the elements set forth in that section must be found to exist." Bureau of Government Financial Operations, Headquarters, 15 FLRA 423, 425 (1984), rev'd on other grounds, NTEU v. FLRA, 774 F.2d 1181 (D.C. Cir. 1985). Thus, in order for the section 7114(a)(2)(A) right to exist, (1) there must be a discussion; (2) which is formal; (3) between one or more [ v29 p5 ] agency representatives and one or more unit employees or their representatives; (4) concerning any grievance or personnel policy or practices or other general condition of employment. Furthermore, in examining each of these elements, we will be guided by that section's intent and purpose--to provide the union with an opportunity to safeguard its interests and the interests of employees in the bargaining unit--viewed in the context of a union's full range of responsibilities under the Statute. See National Treasury Employees Union v. FLRA, 774 F.2d ll81, 1188 (D.C. Cir. 1985) and 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 (1984). We reaffirm this analytical approach.

B. The scope of the term "grievance" in section 7114(a)(2)(A)

The term "grievance" in section 7114(a)(2)(A) was originally given a broad construction by the Authority. In Internal Revenue Service, Fresno Service Center, Fresno, California, 7 FLRA 371, 374-75 (1981), the Authority interpreted that term based on its definition in section 7103(a)(9) of the Statute. Section 7103(a)(9) states in part that "'grievance' means any complaint -- (A) by any employee concerning any matter relating to the employment of the employee(.)" The Authority determined in Fresno Service Center that a meeting held "to attempt resolution of an individual employee's complaint of discrimination" concerned a grievance and was a formal discussion within the meaning of section 7114(a)(2)(A) at which the union in that case had a right to be represented.

Fresno Service Center was reversed by the United States Court of Appeals for the Ninth Circuit. Internal Revenue Service, Fresno Service Center v. FLRA, 706 F.2d 1019 (9th Cir. 1983). The court held in part that the meeting did not concern a "grievance" as that term was used in section 7114(a)(2)(A). Rather, the court held that "grievance" in that section referred to grievances filed in conjunction with a contractual grievance procedure negotiated by the parties under the Statute.

As a consequence of that holding by the Court of Appeals, the Authority subsequently reexamined the meaning of "grievance" in section 7114(a)(2)(A). In Bureau of Government Financial Operations, the Authority considered whether a union had a right under section 7114(a)(2)(A) to attend a meeting held by the agency with a potential witness at a [ v29 p6 ] forthcoming hearing before the Merit Systems Protection Board at which an employee was appealing his removal. Consistent with the Ninth Circuit's decision in the Fresno case, the Authority held that the meeting did not concern a "grievance" under section 7114(a)(2)(A), and distinguished such "grievances" from statutory appeals, of which the MSPB proceeding was an example. Id., 15 FLRA at 426-30.

Bureau of Government Financial Operations was reversed by the United States Court of Appeals for the District of Columbia Circuit in NTEU v. FLRA, 774 F.2d 1181. The D.C. circuit disagreed with the Ninth Circuit's decision in the Fresno case, and, following an extensive discussion of the proper construction of the term "grievance" in section 7114(a)(2)(A), concluded, consistent with but without referencing the Authority's original decision in Fresno Service Center, 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. Id., 774 F.2d at 1185-89. On reexamination, we believe that a return is warranted to the Authority's resolution of this issue in Fresno Service Center. Therefore, consistent with the rationale in the D.C. Circuit's decision in NTEU v. FLRA, we conclude that a "grievance" within the meaning of section 7114(a)(2)(A) can encompass a statutory appeal.

Of course, as noted by the court in NTEU v. FLRA, a union's institutional role with respect to statutory appeal matters is more restricted than its role in the negotiated grievance procedure. Furthermore, as noted by the court in I.R.S. Fresno, there must be consideration given to any conflict between rights under section 7114(a)(2)(A) and those under alternative statutory appeal procedures. In U.S. Government Printing Office, 23 FLRA No. 6 (1986), we resolved a conflict between section 7114 rights and the procedural requirements for a complaint of discrimination under 29 C.F.R. Part 1613, promulgated by the EEOC. We concluded that the informal adjustment of an EEO complaint did not constitute a bypass of the union in that case because the direct dealings between the employee and the management representatives occurred pursuant to specific regulations of the EEOC. Similarly, if there is a conflict between rights under section 7114(a)(2)(A) and those under other statutes, we will consider that conflict in determining whether section 7114(a)(2)(A) has been violated. 2 [ v29 p7 ]

C. Does this case involve a "grievance" within the meaning of section 7114(a)(2)(A)?

We conclude that the oral reply meeting in this case did not concern a "grievance" within the meaning of section 7114(a)(2)(A). 3 The sole purpose of the meeting was to permit the employee to make an oral reply to accusations that led to the proposed action against the employee. No final decision had been made by the agency regarding the proposed action, which at the time of the meeting was merely a possibility. In the absence of any final action by the agency as of the time the meeting was held, the employee had no basis for filing, and had not filed, an appeal pursuant to any statutory appeal procedure. Moreover, no grievance under a contractual grievance procedure was involved. In these circumstances, there was no "complaint" by Bien-Aime and thus no "grievance" under section 7103(a)(9), and the Union therefore did not have a right to be represented under section 7114(a)(2)(A). Compare U.S. Department of Justice, United States Marshals Service and International Council of U.S. Marshals Service Locals, AFGE, 23 FLRA No. 60 (1986) (where the Authority held that precomplaint counseling procedures in the EEO process did not constitute "statutory procedures" under section 7121(d) but instead the filing of a formal written EEO complaint which commenced litigation proceedings constituted such "statutory" procedures).

Consideration of the intent of section 7114(a)(2)(A) confirms this conclusion. As noted above, the D.C. Circuit has discussed the interests which union attendance at a section 7114(a)(2)(A) meeting may safeguard. In NTEU v. FLRA, 774 F.2d at 1188, the court stated its view that the rights and expectations of unit employees are influenced by management decisions as to the propriety and acceptability of various sorts of employee and management conduct. Similarly, the court indicated that unit interests are implicated when an employer decides on a remedy for improper management conduct. Id. Finally, the court in NTEU discussed how the potential for management intimidation or coercion in certain information gathering contexts can be a factor in assessing whether an exclusive representative's right to be represented at a meeting exists under section 7114(a)(2)(A). Id., 774 F.2d at 1192-93. [ v29 p8 ]

It is not apparent how the interests of the unit would have been furthered by the union's presence at the meeting at issue in this case. The record reflects (Exhibit G to the parties' Stipulation), and the General Counsel (Brief at 5) and the Agency (Brief at 6) agree, that the format of the meeting contemplated a wholly passive role for the agency. The meeting was held at the employee's request for the limited purpose of permitting the employee to make an oral presentation to management concerning the action that management had proposed taking against the employee. Nothing in the record provides a basis for finding that any settlement discussions were anticipated, or that any statement was expected from management reflecting the state of management's deliberations concerning the validity of the discipline proposed. Further, nothing in the record indicates the presence of any intimidation or coercion. Consideration of section 7114(a)(2)(A)'s intent therefore confirms the conclusion that the union in this case did not have a section 7114(a)(2)(A) right to be represented at the meeting in question.

Further, we do not find the D.C. Circuit's decision in NTEU v. FLRA, supra, 774 F.2d 1181 to the contrary. The court reached its decision in that case in part on the basis of its determination that a "grievance" within the meaning of section 7114(a)(2)(A) could include a statutory appeal. As discussed previously, the meeting in this case concerned an action which was only proposed. Under MSPB regulations and case law, proposed actions cannot form the basis for a statutory appeal to the MSPB. 5 C.F.R. 1201.3 (1987) (detailing the actions over which the MSPB has appellate jurisdiction); Riddick v. OPM, 27 M.S.P.R. 590. Thus, the circumstances in which the employee found himself in the instant case did not provide any basis upon which he could have initiated a statutory appeal as the employee had done in NTEU. The parties have stipulated to this effect. Stipulation, para. 19.

Finally, we note that the oral reply is a personal right of the employee under 5 U.S.C. 7513(b), and under that section the employee has a statutory right to "be represented by an attorney or other representative(.)" The employee elected to make an oral reply and elected to choose an attorney to represent him. While he could have chosen the union to represent hip, he chose an attorney instead. In these circumstances, in which we have already concluded that no independent right to representation exists under section [ v29 p9 ] 7114(a)(2)(A) of the Statute, we can find no statutory purpose that would be served by requiring that the Union be given an opportunity to be represented at the January 10 meeting.

V. Conclusion

As the January 10 oral reply meeting did not concern a grievance, and there is no allegation that the meeting concerned any personnel policy or practices or other general condition of employment, the meeting did not satisfy this element of a formal discussion under section 7114(a)(2)(A). Therefore, the Respondent's failure to give the Union an opportunity to be represented did not violate section 7116(a)(1) and (8) of the Statute.

ORDER

The complaint in Case No. 1-CA-60280 is dismissed.

Issued, Washington, D.C.,September 30, 1987

Jerry L. Calhoun, Chairman

Henry B. Frazier III, Member

Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY [ v29 p10 ]

FOOTNOTES

Footnote 1 The stipulated record does not disclose the meaning of UNICOR.

Footnote 2 See also NTEU v. FLRA, at 1189 n.12, where the court discussed the need for resolution of such conflicts when they arise.

Footnote 3 Based on this conclusion, we find it unnecessary to consider whether the other elements of a formal discussion were present.

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