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Do We Really Need Formal Discussions?

The author discusses the great amount of litigation over the definition of formal discussions in federal labor relations.

When teaching a class on basic labor relations, you always come to the section about meetings the union is entitled to participate in and/or attend. The meetings that are usually discussed are investigatory examinations (aka Weingarten meetings), bypasses, contractually required meetings, and formal discussions.

This article will focus mainly on formal discussions.

The various meeting types can result in unfair labor practice (ULP) charges or at a minimum a grievance.

The failure or refusal to provide a requested union representative for a Weingarten meeting can result in an unfair labor practice. Conducting a meeting that deals directly with employees on working conditions matters can be considered bypasses and may also lead to an unfair labor practice. Failure to allow a union rep to be present at a contractually required meeting, which provides for the right of an employee to have a rep present, can result in the filing of a grievance. Lastly, holding a formal discussion without the union rep being given the opportunity to attend can also be an unfair labor practice. 

Meetings with bargaining unit employees provide rights for union representation. In my mind, the most interesting of the meetings just discussed is the formal discussion.

As I have always instructed during training: if the union wanted to file a lot of ULP charges, it could go around the workplace with a bushel basket (nowadays I have to explain what a bushel basket is) and fill it with ULP charges claiming management held formal discussions without providing the union notice or an opportunity to attend.

What is a Formal Discussion?

So, what is a formal discussion?

The Definition is found in 5 U.S.C. 7114(a) (2) (A) of the Federal Service Labor Management Relations Statute (Statute). This section provides: 

An exclusive representative of an appropriate unit in an agency shall be given the opportunity to be present at—

A. any formal discussion between one or more representatives of the Agency and one or more employees in the unit concerning any grievance or any personnel policy or practices or other general conditions of employment. 

Litigating the Definition

Since the enactment of the Statute, almost every word or phrase of this definition has been litigated.

The first phrase “shall be given every opportunity to be present” has led to litigation about what is appropriate notice of a formal discussion. Is the union entitled to specific notice to the union so it can choose a specific rep to attend or if a union rep happens to be in the group of employees who is to attend the meeting is that good enough?

This question has been answered a couple of ways by the FLRA.

If the meeting is a special meeting with the head of the organization making a presentation about general working conditions issues to a large group of employees in the bargaining unit, the fact a union rep happens to be in the meeting is not good enough. However, if the manger is holding a staff meeting, which otherwise meets the definition of a formal discussion, and a union rep always attends the meetings as a union rep on behalf of the union, no specific notice may need to be given. 

The next question is “how much notice must the union be given?”. Once again, the answer depends.

At a minimum, the union must be given as much notice as the employees, who are to attend the meeting, are given. Specific amounts of notice and who notice is to be given to, are sometimes negotiated in collectible bargaining agreements. 

The next question that has been litigated is “what does an opportunity to be present mean?”.

Long ago it was decided that opportunity to be present meant just that, the union would be given the opportunity, but if it did not provide a rep, the show goes on without the union. The agency does not have to hold up or cancel the meeting because the union does not show up. The union has the right to decide whether or not it is interested in sending a rep.

The next issue with this phrase is “what does it mean by being present?”. What is the union’s role at the meeting? The union rep has the right to ask questions and seek clarification but it is not a negotiating session. Moreover, if the union rep is so disruptive to the meeting that the meeting cannot proceed, based on the circumstances, the union rep may be removed from the meeting and the meeting can proceed without the rep.

What happens if the union doesn’t have a rep available for the meeting? It must be provided a reasonable amount of time to find a rep and if none is available, once again the show goes on without the union. Management has no obligation to cancel its meeting because the union cannot be present.

The next phrase “any formal discussion” has also led to a considerable amount of litigation over what the word formal means and what is a discussion.

The FLRA, years ago, established rules for formality. The basic rule is that the more of these indicia of formality that are met the more formal the meeting and the more likely it is a formal discussion.

There are at least 8 indicia of formality:

  1. How high in the management hierarchy was the caller of the meeting;
  2. Did other management officials attend;
  3. What was the site of the meeting;
  4. How was the meeting called;
  5. How long was the discussion;
  6. Was there a formal agenda;
  7. Was the meeting mandatory;
  8. What was the manner in which the meeting was conducted. 

If the meeting doesn’t meet a sufficient number of the indicia of formality it is not a formal discussion. The number that must be met is dependent on the significance of the subject matter of the meeting. In other words, the more important the issues to be discussed the less formality that is required.

The definition of discussion has also been litigated. The question was: “does a discussion have to be a back and forth discussion of employees and management both talking or is it enough if there are no responses by employees and management does all the talking?”. The FLRA said it can be the manager doing all the talking because it is what the manager says that makes it a formal discussion.

The meaning of discussion has changed with the advent of technology. When the Statute was enacted there was no thought to meetings other than face to face. However, with the significant movement to virtual meetings the definition has changed somewhat. As appropriate, the indicia of formality can be met in a virtual environment. 

“Who are the representatives of an agency?” has also been contested. It has been found that representatives include managers, supervisors, human resource staff, EEO investigators and contractors conducting focus groups as agents of management. 

What constitutes a “grievance” under this section of the Statute has been the subject of considerable litigation including several federal court cases.

There is still conflict in the Federal Circuit Courts as to whether an EEO case is a grievance at the informal stage of the investigation. There is no conflict that when an EEO settlement meeting at the formal stage of an EEO complaint process that the meeting is formal discussion.

Generally, a grievance is a complaint as defined by the Statute and not just a grievance filed under the negotiated grievance procedure. The union must be afforded the right to be present at a grievance meeting even when the employee chose to file the grievance on the employee’s own behalf without union representation. 

The last major area of contention is the term “general conditions of employment”. This has been interpreted to mean conditions of employment that affect more than one employee.

For example, a discussion of an individual employee’s request for leave is not a general condition of employment, however a discussion of leave requests affecting the whole work unit can be considered a general condition of employment.

Conclusion

As can be seen, formal discussion has been the subject of considerable litigation throughout the life of the Statute. Hundreds of thousands if not well over a million dollars have been spent litigating all the areas discussed above. 

Is the formal discussion provision of the Statute really necessary?

There is no comparable right for unions in the private sector. The original intent was to deal with what happens when meetings are held in a unionized environment, as are held in the private sector, to discuss working condition issues without the union being present. These meetings are held as a means to encourage employees to seek to decertify the union.

Decertification is not a real threat in the federal sector. Employee driven decertification of federal sector unions have been rare. This is most likely because employees in a federal bargaining unit are not required to pay dues. Some employees see federal unions as a free insurance policy. Its something they can use if they need to, but don’t have to pay for the privilege.

If there is ever to be legislative reform of the Statute the continued need for the union right to be given the opportunity to be present at formal discussions should be assessed. Some parts of the protection provided by formal discussions should be retained but some are not necessary.

As an example, having a union rep at every staff meeting may not be necessary. However, if a supervisor wants to talk about changing working conditions and asks employees for input on the changes, the union’s right to not be bypassed and to represent employees at such a discussion should be preserved. 

About the Author

Joe Swerdzewski, former General Counsel of the FLRA & owner of JSA LLC is the author of The Essential Guide to Federal Labor Relations, A Guide to Successful Federal Sector Collective Bargaining, etc. For more info on JSA’s services, email [email protected] or subscribe to JSA’s newsletter.