U.S. DEPARTMENT OF JUSTICE
IMMIGRATION AND NATURALIZATION
SERVICE, NEW YORK OFFICE OF ASYLUM
ROSEDALE, NEW YORK
(Respondent)

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL NO. 1917
(Charging Party/Union)

BN-CA-60151

DECISION AND ORDER

October 28, 1999

Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members. [n1]

This unfair labor practice case is before the Authority on exceptions to the attached decision of the Administrative Law Judge filed by the Respondent. The General Counsel filed an opposition to the Respondent's exceptions and also filed cross-exceptions to the Judge's decision. The Respondent filed an opposition to the cross-exceptions.

The complaint alleges that the Respondent violated section 7116(a)(1) and (8) of the Federal Service Labor-Management Relations Statute (the Statute) by conducting a formal discussion with a bargaining unit employee without affording the Union an opportunity to be represented at the discussion. The complaint also alleges that the Respondent violated section 7116(a)(1) and (5) of the Statute by bypassing the Union when it attempted to resolve a grievance directly with the employee. The Judge found that the Respondent held a formal discussion concerning a personnel policy without affording the Union an opportunity to be represented, but he did not address the bypass allegation. [n2]

Upon consideration of the Judge's decision and the entire record in this case, we agree with the Judge's conclusion, but for the reasons set forth below, that the Respondent violated section 7116(a)(1) and (8) of the Statute, as alleged. We further find that the Respondent violated section 7116(a)(1) and (5) of the Statute when it bypassed the Union.

The facts are fully set forth in the Judge's decision. Briefly stated, the record shows that, on June 19, 1995, the Respondent hired the employee as a personnel clerk. [n3] During the course of her employment, issues arose between the employee and her immediate supervisor regarding the employee's work assignments and job performance. The employee complained to the Union steward about difficulties she was having with her supervisor, unclear directions she was receiving, and her lack of training opportunities.

At the steward's request, the steward and the supervisor scheduled a meeting for September 25. On September 22, the supervisor canceled the meeting because the steward refused to identify his "agenda" for the meeting. Judge's Decision at 17. The steward stated that he believed it would be contrary to the parties' collective bargaining agreement to do so before the meeting and that there was no past practice of revealing such information in advance. No meeting between the steward and the supervisor occurred.

In a letter dated September 28, the steward filed a formal grievance regarding several matters with the Respondent's Director under Article 47, Step II of the parties' negotiated agreement. [n4] The Union explained, among other things, that the employee had been contemplating filing a grievance and had contacted the Union to request representation. The Union stated that the parties' agreement and long-established past practice called for grievances at Step I to be conducted in person and informally in order to avoid escalation of the grievance. The Union explained why it had not mentioned [ v55 p1033 ] the subject matter of the meeting to the supervisor in advance of the meeting, and claimed that the grievant's right to file a grievance was violated by her supervisor. The Union requested a number of remedial actions, including the opportunity to meet with a management representative, such as the grievant's first-line supervisor, to discuss and possibly settle issues concerning the employee.

On October 15, the Respondent's Director notified the employee that there would be a meeting the next day to discuss her work assignments and job performance. On October 16, the employee, the supervisor, and the Supervisory Asylum Officer held a meeting and discussed those issues. The Respondent scheduled and held the October 16 meeting without notifying the Union. On November 30, the Respondent terminated the employee.

The Judge held that the Respondent conducted a formal meeting, involving a personnel policy, without first notifying the Union, thus violating section 7116(a)(1) and (8) of the Statute. In this regard, the Judge found that Respondent's officials held the October 16 meeting to explain to the employee that she needed to improve her job performance and follow her supervisor's orders. The Judge also found that no one notified the Union of the meeting or requested that the Union be present. The Judge found that the meeting was a formal discussion, pursuant to section 7114(a)(2)(A) of the Statute, because there was a meeting, the meeting was formal, the meeting occurred between one or more of the Respondent's representatives, and one or more employees in the unit, and the meeting concerned a personnel policy.

The Judge also determined that the meeting did not concern a "grievance," pursuant to section 7114(a)(2)(A) of the Statute. Judge's Decision at 26. The Judge found that the employee stated that she "contemplated filing a possible grievance" but that she did not file a grievance or "discuss[] the possibility of filing a grievance" . . . . Id. at 18-19.

Finally, and as stated previously, the Judge did not address the allegation that the Respondent bypassed the Union by meeting directly with an employee.

The Respondent argues that the Judge incorrectly found that the meeting between the employee and Respondent's officials concerned a personnel policy. The Respondent contends that the Judge found a violation by relying on a legal issue not "encompassed by the complaint[,]" as the complaint did not charge the Respondent with violating the Statute by conducting a formal meeting concerning a personnel policy, but by conducting a formal meeting concerning a grievance. Respondent's Exceptions at 12. The Respondent elaborates by stating that "an uncharged legal issue . . . may not be the basis for liability where that legal issue was not 'fully and fairly litigated.'" Id. at 12 (emphasis in original).

The Respondent also contends that the Judge erred by finding that the meeting was formal, asserting that the totality of the circumstances does not demonstrate the requisite formality. In particular, the Respondent claims that the October 16 meeting did not have an agenda and that the "purpose and nature" of the meeting was informal. Id. at 11.

The General Counsel argues that the meeting was a formal discussion because it fulfilled numerous indicia of formality. The General Counsel argues that under a totality of the circumstances analysis, the factors show that the discussion was formal.

The General Counsel argues that while the Judge correctly determined that the Respondent violated section 7114(a)(2)(A) of the Statute, he did so for the wrong reason. The General Counsel concurs with the Respondent that the Judge's legal analysis is incorrect because the meeting did not concern a personnel policy.

The General Counsel argues that the meeting concerned a "grievance," within the meaning of section 7114(a)(2)(A) of the Statute. Relying on Authority precedent, the General Counsel states that the Authority broadly interprets the term "grievance," to encompass "any complaint by an employee . . . concerning any mat- [ v55 p1034 ] ters relating to the employment of the employee." General Counsel's Cross-Exceptions at 7. Citing U.S. Department of Justice, Bureau of Prisons, Federal Correctional Institution, Bastrop, Texas, 51 FLRA 1339, 1345 (1996) (FCI, Bastrop), the General Counsel maintains that "[e]ven if a 'grievance' is not filed under a negotiated grievance procedure, and remains a potential grievance, the matter is still considered a 'grievance' within the meaning of section 7114(a)(2)(A) of the Statute." General Counsel's Cross-Exceptions at 7. According to the General Counsel, the employee "raised a complaint, or 'grievance'" concerning her work situation with her supervisors and the Union and, thereafter, the Union established that it was representing the employee. Id. at 8.

Finally, the General Counsel contends that, although the Judge made no finding as to the specific allegation that the Respondent violated section 7116(a)(1) and (5) of the Statute by bypassing the Union, both parties addressed this allegation in their opening statements and fully litigated the issue. As to the merits of the claim, the General Counsel argues that the Respondent's conduct in dealing directly with the employee concerning her grievance interfered with the Union's right under section 7114(a)(1) of the Statute to act for, and represent the rights of, bargaining unit employees.

The Respondent argues that the meeting between the employee and Respondent's officials did not concern a grievance. To support this argument, the Respondent cites testimony that the purpose of the meeting was to discuss the employee's work assignments and job performance, and the employee's statement that the meeting concerned her difficulty communicating with her supervisor. The Respondent also relies on the Judge's finding that the meeting did not concern a grievance.

The Respondent did not file an opposition to the General Counsel's exception regarding the bypass issue.

In agreement with the Judge's conclusion, but for the reasons explained below, we conclude that the Respondent violated section 7116(a)(1) and (8) of the Statute by conducting a formal discussion about a grievance without notifying the Union and giving it an opportunity to be represented at the discussion.

Under section 7114(a)(2)(A) of the Statute, a union must be afforded the opportunity to be present at a formal discussion between one or more representatives of an 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 the section 7114(a)(2)(A) right to exist, (1) there must be a discussion; (2) which is formal; (3) between one or more 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. [n5] U.S. Department of Justice, Bureau of Prisons, Federal Correctional Institution (Ray Brook, New York), 29 FLRA 584, 588-89 (1987) (FCI, Ray Brook), aff'd, 865 F.2d 1283 (D.C. Cir. 1989). In assessing the existence of a formal discussion, the Authority examines the totality of the circumstances presented in each case. See, e.g., Marine Corps Logistics Base, Barstow, California, 45 FLRA 1332, 1335 (1992). See also Department of Veterans Affairs v. FLRA, 3 F.3d 1386, 1389 (10^th Cir. 1993) (Veterans Affairs v. FLRA). A failure to afford a union an opportunity to be represented at a formal discussion concerning any grievance, personnel policy or practices or other general condition of employment constitutes a violation of section 7116(a)(1) and (8) of the Statute. See, e.g., F.E. Warren Air Force Base, Cheyenne, Wyoming, 52 FLRA 149 (1996) (F.E. Warren).

Both the General Counsel and the Respondent maintain that the October 16 meeting did not concern a personnel policy or practice within the meaning of section 7114(a)(2)(A) of the Statute. We agree. [ v55 p1035 ]

In determining whether a discussion concerns "any personnel policy or practices or other general condition of employment" the Authority has held that the term "any personnel policy or practices" involves "general rules applicable to agency personnel, not discrete actions taken with respect to individual employees." American Federation of Government Employees, Council 214 and U.S. Department of the Air Force, Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 38 FLRA 309, 330 (1990) enforced sub nom. U.S. Department of the Air Force, Wright-Patterson Air Force Base, Ohio v. FLRA, 949 F.2d 475 (D.C. Cir. 1991) (citing Bureau of Field Operations, Social Security Administration, San Francisco, California, 20 FLRA 80, 83 (1985)).

The Judge did not cite any evidence that the discussion involved general rules that are applicable to agency personnel and no such evidence is apparent in the record. It is undisputed that the discussion between the employee and Respondent's officials focused only on the employee and her immediate supervisor and, as such, involved a discrete action with respect to an individual employee.

Under these circumstances, we conclude that the Judge erred in finding that the discussion concerned a "personnel policy or practice." [n6]

The Statute defines the term "grievance" broadly to include "any complaint . . . by any employee concerning any matter relating to the employment of the employee[.]" See 5 U.S.C. § 7103(a)(9). In determining whether a formal discussion concerns a grievance under section 7114(a)(2)(A), invoking a union's right to be represented, the Authority has stated, citing precedent of long-standing duration, that the term "grievance" "'should be interpreted in light of its broad definition in section 7103(a)(9) of the Statute.'" FCI, Bastrop, 51 FLRA at 1344 (quoting FCI, Ray Brook, 29 FLRA at 590).

The Authority has had many occasions to apply that broad definition in addressing whether a formal discussion concerned a grievance. In FCI, Bastrop, the Authority held that the term "grievance" encompasses the informal stages of a grievance procedure. 51 FLRA at 1344. In addition to contractual grievances, the Authority found in FCI, Ray Brook, for example, that the term "grievance" in section 7114(a)(2)(A) can encompass a statutory appeal. In the particular circumstances of that case, the Authority found that an oral reply to a notice of proposed suspension was not a formal discussion within the meaning of section 7114(a)(2)(A). [n7] The Authority also held, in Luke Air Force Base, Arizona, 54 FLRA 716, 730 (1998), petition for review filed sub nom. Luke Air Force Base, Arizona v. FLRA, No. 98-71173 (9^th Cir. Oct. 9, 1998), that "[t]he statutory definition of a grievance is not dependent on the scope of a negotiated grievance procedure." See also National Treasury Employees Union v. FLRA, 774 F.2d 1181, 1186 (D.C. Cir. 1985) (NTEU v. FLRA) ("Nothing in this definition [of section 7103(a)(9)] restricts a 'grievance' to matters raised through a negotiated procedure.").

In this case, the Judge found that the employee had not filed a grievance, citing Article 47 of the parties' collective bargaining agreement. See Judge's Decision at 18-19. See also note 4, supra. According to the Judge, the negotiated grievance procedure does not provide that, where an employee is "thinking about filing a grievance," the Union "can insist upon a meeting with the supervisor to decide if it should file a grievance." Judge's Decision at 19.

The Judge's conclusion that no grievance was filed under Article 47, and our dissenting colleague's adoption of that conclusion, fail to take into account fully the terms of the negotiated grievance procedure. Article 47 has both informal and formal steps. The first step is informal and involves an oral communication between the "concerned employee" and the employee's supervisor. See note 4, supra. The first step also provides that an employee "may . . . be assisted in the presentation by the Union representative." Id. The second step is formal and reduces the grievance to written form. [ v55 p1036 ]

The record establishes, and it is undisputed, that the Union filed a formal written grievance, that is a Step II grievance, on September 28. [n8] The Judge examined the formal grievance and found that it "highlighted" the employee. Judge's Decision at 18. We concur with that finding. Among other things, the formal grievance specifically referred to the employee as "the grievant" and explained that the Union official had attempted to initiate a grievance on behalf of the employee under the first step of the grievance procedure, noting that "investigations relative to grievances at Step I level are conducted in person and informally.". See Joint Exhibit 2 at 1. The grievance also expressly states that the employee requested representation and that the day after being contacted by the employee, the steward requested a meeting with the first-line supervisor. The grievance also requested that the employee "be afforded every opportunity . . . to meet with the Union representative in order for her to address her complaints[,]" and specified actions that the Respondent should take to allow the Union to meet with the employee and management "to discuss and possibly settle issues concerning [the employee]." [n9] Id. Although the formal grievance also described the employee as having merely "contemplat[ed] a grievance" before the Union requested to talk with the first-level supervisor, and described the request to meet as pertaining to a "possible grievance," we focus here on the totality of the record evidence.

The record also establishes that the formal grievance placed the Respondent on notice that, at a minimum, the Union wanted, and had attempted, to discuss the employee's concerns with the employee's first level supervisor and that it viewed the scheduled discussion as a Step I grievance. [n10] In this connection, the grievance letter shows that it was filed with the Respondent's Director, the same official who subsequently notified the employee of the meeting, and that it was filed more than 2 weeks before the employee was notified of the October 16 meeting. [n11]

Other evidence that the Judge credited also establishes both that the Respondent was aware of the employee's difficulties with her supervisor, and that the Respondent intended to and did discuss those very matters at the October 16 meeting. In particular, the Judge credited the Director's testimony as to that meeting as follows:

Judge's Decision at 14, quoting Transcript of Hearing at 101. The Judge further characterized the meeting as one designed to address the problems that the employee and the supervisor were having with one another, in terms of training and following instructions, as well as the supervisor's competence.

In these circumstances, we find that the Respondent was on sufficient notice of the Union's failed attempt to file an informal grievance on behalf of the employee and that it was aware that the October 16 meeting concerned the same topic as the informal grievance. [n12] In light of the identity of issues presented in the failed attempt at filing the informal grievance and the [ v55 p1037 ] October 16 meeting, we find that the meeting concerned a "grievance" under section 7114(a)(2)(A) of the Statute at which the Union should have been given an opportunity to be represented. See FCI, Ray Brook.

A conclusion that the October 16 meeting did not concern a grievance and that the Respondent "would have had no idea that the employee's personal concerns were intended to be subsumed in the [formal] grievance," see dissent, slip op. at 27, can be reached only by analyzing each fact in isolation from all other facts and engaging in a strained reading of the grievance. Not only is this approach inconsistent with the Authority's long-standing practice of examining the totality of the circumstances presented, but it is at odds with a proper interpretation of the Statute, as set forth above.

In determining that the October 16 meeting constituted a formal discussion, we also find that the employee's statement, relied on by the Judge and noted by our dissenting colleague, that the grievant had not discussed the possibility of filing a grievance with the Union, does not warrant a different conclusion. While we do not ignore the Judge's credibility findings about the grievant, we do not find the grievant's testimony on this dispositive. Resolving whether the employee filed a "grievance" involves both statutory and contract interpretation. The employee, applying a lay person's definition of a "grievance" -- for example, as a piece of paper filed with the employer -- would not necessarily know that requesting an opportunity to orally raise concerns about her employment would commence a grievance. It is also understandable that, as a probationary employee, the employee would not be aware of all the rights provided by the Statute and the parties' agreement. Where, as here, the record contains no information as to the employee's understanding of the Statute and the contract terms, we conclude that it would be inappropriate to give dispositive weight to her response when questioned whether she discussed a "grievance" with the union.

Furthermore, as the Authority recognized in FCI, Ray Brook, section 7114(a)(2)(A) of the Statute essentially has a dual intent and purpose: "to provide the union with an opportunity to safeguard its interests and the interests of employees in the bargaining unit . . . ." 29 FLRA at 589. Particularly in situations where the union is providing direct assistance to an employee who believes he or she has been wronged, section 7114(a)(2)(A) must not be construed as an impediment to the employee's ability to grieve a condition of employment. Stated otherwise, section 7114(a)(2)(A) must not be applied in a way that restricts an employee's access to its protections by impairing a union's ability to safeguard the interests of the employee. However, that is precisely what the dissenting opinion does in this case by unnecessarily restricting the statutory definition of grievance.

Finally, in finding that the October 16 meeting concerned a grievance, we emphasize that our conclusion is based on the record evidence presented in this case. Not every meeting at which an employee's concerns are discussed is transformed into a formal discussion concerning a grievance. For example, it is well established that "counseling sessions" do not constitute formal discussions. See, e.g., F.E. Warren, 52 FLRA at 156. Where, as in this case however, the record establishes that the "concerns" related to work assignments and job performance, had previously been the subject of a counseling session, existed throughout much of the employee's tenure and ultimately culminated in the employee's removal, and the Respondent was on notice that the Union had attempted to file an informal grievance on the employee's behalf, the concerns were more than simply efforts to discuss differences of opinion the employee had with the supervisor or air the employee's "gripes." We believe that the statutory definition of grievance, along with the requirements of section 7114(a)2)(A) provide sufficient guidance for determining when a meeting between an employee and a representative of an agency becomes a formal discussion for purposes of invoking a union's right to representation.

In sum, we conclude that the October 16 meeting concerned a grievance within the meaning of section 7114(a)(2)(A) of the Statute. [n13]

The Respondent disputes the Judge's finding that the October 16 meeting was formal essentially for two reasons: 1) the meeting lacked an agenda; and 2) the "purpose and nature" of the meeting was informal. Exceptions at 11. [ v55 p1038 ]

More particularly, the Respondent states that "having a meeting, and having a purpose to be achieved by that meeting, does not equate to having an agenda." Id. at 10. The Respondent asserts that the Authority should reach the same result in this case as it did in Marine Corps Logistics Base, Barstow, California, 45 FLRA 1332 (1992) (Marine Corps, Barstow). Additionally, the Respondent maintains that "highly personal counseling sessions" are informal. Exceptions at 11.

In F.E. Warren, 52 FLRA at 155-57, the Authority discussed the element of "formality" in section 7114(a)(2)(A). The Authority noted that, in some cases, formality is established based on the purpose of a discussion. In other cases, formality is assessed through an examination of several factors set forth in Authority precedent. Whichever approach is used, the Authority reaffirmed that the totality of the facts and circumstances presented in each case must be considered in determining formality.

In this case, a preponderance of the evidence in the record supports the Judge's finding that the October 16 meeting was formal. The meeting was scheduled in advance, was conducted by a supervisory asylum officer, took place in that official's office, and was mandatory. Although no notes or minutes of the meeting were taken, the supervisory asylum officer reported the results of the meeting to the Respondent's Director. The decision in Marine Corps Barstow, on which the Respondent relies, provides no support for holding that the October 16 meeting was not a formal discussion. In that case, the Authority found, based on the totality of the circumstances presented, that a meeting with employees was not formal. The Authority pointed to a number of factors in support of its conclusion, including the fact that the meeting was held on the shop floor and lasted only 10 minutes, only the first-line supervisor attended the meeting, no agenda was prepared and no notes were taken. Since the formality of each discussion is assessed on a case-by-case basis, the Authority is not compelled to reach the same result in both cases particularly where, as here, there were other factors present to support the Judge's finding of formality.

Finally, we disagree with the Respondent's assertion that the October 16 meeting was an informal counseling session. For the reasons stated in the preceding section, the meeting concerned an employee grievance, at which the Union should have been provided with an opportunity to be represented.

The Judge did not decide whether the Respondent bypassed the Union in violation of section 7116(a)(1) and (5) of the Statute. Under Authority precedent, an agency violates section 7116(a)(1) and (5) of the Statute when, among other things, it deals directly with employees in a unit of exclusive recognition concerning a grievance. As the Authority stated in FCI, Bastrop:

51 FLRA at 1346.

Based on our findings above, that the October 16 meeting concerned a grievance and was formal, the Union had a right under section 7114(a)(2)(A) of the Statute to be present. Because the Respondent failed to notify the Union of the meeting and afford it an opportunity to be represented, and instead met directly with an employee concerning a grievance, we conclude that the [ v55 p1039 ] Respondent bypassed the Union in violation of section 7116(a)(1) and (5) of the Statute.

Pursuant to section 2423.41 of the Authority's Regulations and section 7118 of the Federal Service Labor-Management Regulations Statute, the U.S. Department of Justice, Immigration and Naturalization Service, New York Office of Asylum, Rosedale, New York, shall:

1. Cease and desist from:

(a) Conducting a formal discussion with any bargaining unit employee concerning any grievance without affording the American Federation of Government Employees, AFL-CIO, Local No. 1917 (the Union), the exclusive representative of certain 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) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights assured by the Statute.

2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute:

(a) Provide prior notice to the Union and 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.

(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 Director of the New York Office of Asylum, Rosedale, New York 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 2423.41(e) of the Authority's Regulations, notify the Regional Director, Boston 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 U.S. Department of Justice, Immigration and Naturalization Service, New York Office of Asylum, Rosedale, New York, 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 without affording the American Federation of Government Employees, AFL-CIO, Local No. 1917 (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 in any like or related manner interfere with, restrain, or coerce bargaining unit employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.

WE WILL provide prior notice to the Union and an 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.

______________________