Formal Meetings and Preparation for Third Party Proceedings
There are many times when the Agency attempts to interact with members of NATCA’s bargaining units without the benefit of a Union representative. One of the most alarming examples of the Agency’s failure to afford employees the protection of the law comes when they interview employees in anticipation of an arbitration hearing, any MSPB or ULP hearing, or any other third party proceeding. A meeting called by the Agency in advance of one of these proceedings triggers two separate entitlements. The first ensures that a Union representative is present. The second is a series of safeguards that serve to protect the rights of an individual subject to interrogation in anticipation of a third party proceeding.
Section 7114(a)(2)(A) of the Statute states that:
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 conditions of employment.
A formal discussion (or meeting) takes place when four distinctive criteria are met:
1) There is a discussion:
The FLRA has long held that a discussion is equivalent to a meeting. As such, there does not need to be any real dialogue or give and take. Essentially, if a meeting is held to make a statement or provide information, this element is met.
2) The discussion is formal:
When determining whether a meeting is formal, the Authority will look at the circumstances involving the meeting. Some indicia of formality include: the presence of upper-level management, a formal agenda, a lengthy meeting, mandatory attendance, a more formal meeting location, and the type of advance notice provided.
3) The discussion is between one or more representatives of the Agency and one or more employees in the unit or their representatives:
A representative of the Agency must be involved in the meeting in order to trigger the Union’s representational rights. An agent of the employer has been defined broadly — even including contractors — because the Agency is responsible for the acts of its agents.
4) The discussion concerns any grievance, personnel policy, practices, or general condition of employment:
The subject matter of the meeting covered by 7114 is quite broad. The FLRA has interpreted a grievance to include: grievances filed under the negotiated grievance procedure, MSPB or ULP hearings, and formal EEO complaints.
When these four elements are met, the Union has a representational right. In contrast to the situation presented by an investigatory interview, the right to have a Union representative at a formal meeting is not merely an individual right. Thus, the Union is entitled to advance notice of the meeting in order to appoint a representative.
Because the Union believes interviews of an employee prior to a third party proceeding constitute a formal meeting, it is vital that the Union is afforded the opportunity to be present. Once that meeting takes place, the Agency must comply with a series of safeguards that protect the employee. The seminal case related to these protections is Internal Revenue Service and Brookhaven Service Center and National Treasury Employees Union, Chapter 99, 9 FLRA 930 (1982). In that case, the FLRA created a series of protections that an Agency representative must follow when interviewing an employee in preparation for a proceeding before a third party where the Union is either a party to the proceeding or acting as a representative. These safeguards mitigate any possible coercion on the part of the Agency representative. The Agency representative must:
1. Inform the employee of the purpose of the questioning, that participation is voluntary, and that no reprisal will occur if he or she refuses to participate;
2. Ensure that the questioning occurs in a non-threatening and non-coercive context; and
3. Limit the questions to the scope of the legitimate purpose of the inquiry.
While an employee may be compelled to provide testimony at the proceeding, he or she may not be required to submit to an interview by the Agency in anticipation of that proceeding. Any employee faced with the prospect of being interviewed under such circumstances should request a Union representative and feel free to decline a request to meet with the Agency representative. Any failure by the Agency to provide a non-coercive setting for the investigation or an attempt to force an employee’s participation will result in an Unfair Labor Practice. Should you be subjected to such a violation, contact your Regional Vice President for assistance immediately.