Bureau of Government Financial Operations and NTEU Chapter 202 (Authority decision, April 28, 1986)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority. An aggrieved person may seek judicial review by filing a petition in an appropriate United States court of appeals within 60 days after issuance under 5 U.S.C. § 7123(a). Filing a petition does not stay the Authority's order unless the court orders a stay under 5 U.S.C. § 7123(c).

Plain-English summary

The Bureau of Government Financial Operations interviewed a bargaining unit employee while preparing for a Merit Systems Protection Board hearing without notifying NTEU. The Authority had earlier dismissed the union's unfair labor practice complaint, but a federal appeals court set that decision aside. The court held that the interview was a formal discussion about a grievance and that the union had a right to notice and an opportunity to attend. Accepting the court's ruling as the law of the case, the Authority ordered the agency to give notice and allow union representation at such discussions. It also ordered employee notices to be posted.

Decision snapshot

• Authority: Union representation at formal discussions under 5 U.S.C. § 7114(a)(2)(A).
• Outcome: Remedial order issued after the court set aside the earlier dismissal.
• Key point: A formal employee interview connected to a grievance requires notice to the exclusive representative and an opportunity for it to attend.

Full text (FLRA public release)

[ v21 p512 ]

21:0512(69)CA

The decision of the Authority follows:

21 FLRA No. 69

BUREAU OF GOVERNMENT FINANCIAL
OPERATIONS, HEADQUARTERS
Respondent

and

NATIONAL TREASURY EMPLOYEES UNION
AND NATIONAL TREASURY EMPLOYEES
UNION, CHAPTER 202
Charging Party

Case No. 3-CA-2646
(15 FLRA 423)

SUPPLEMENTAL DECISION AND ORDER

On August 1, 1984, the Authority issued its Supplemental Decision and Order in the above-entitled proceeding /1/ in which it found that the Respondent was not obligated under section 7114(a)(2)(A) of the Federal Service Labor-Management Relations Statute /2/ (the Statute) to afford an exclusive representative of its employees notice of and the opportunity to be present at an interview of a unit employee in preparation for a hearing before the Merit Systems Protection Board (MSPB) and therefore had not violated section 7116(a)(1) and (8) of the Statute. /3/ Bureau of Government Financial Operations, Headquarters, 15 FLRA 423 (1984). Thereafter, on October 11, 1985, the U.S. Court of Appeals for the District of Columbia Circuit set aside the Authority's Decision and held, contrary to the Authority, that the subject matter of the interview concerned a grievance as that term is used in section 7114(a)(2)(A) of the Statute, that the interview constituted a formal discussion within the meaning of section 7114(a)(2)(A), and that the Respondent's failure to notify the exclusive representative and provide it with an opportunity to be present at the interview therefore was contrary to the requirements of section 7114(a)(2)(A) and thus in violation of section 7116(a)(1) and (8) of the Statute. National Treasury Employees Union v. FLRA, 774 F.2d 1181 (D.C. Cir. 1985).

The Authority accepts the court's opinion as the law of the case and, consistent with that opinion, shall issue the following remedial order:

ORDER

Pursuant to section 2423.29 of the Federal Labor Relations Authority's Rules and Regulations and section 7118 of the Statute, it is hereby ordered that the Bureau of Government Financial Operations, Headquarters, shall:

1. Cease and desist from:

(a) Conducting formal discussions with employees in the bargaining unit exclusively represented by the National Treasury Employees Union, concerning grievances or any personnel policy or practices or other general conditions of employment, without affording the NTEU prior notice of, and the opportunity to be represented at, such formal discussions.

(b) In any like or related manner interfering with, restraining or coercing its employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.

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

(a) Notify the National Treasury Employees Union of, and afford it the opportunity to be represented at, formal discussions with members of the bargaining unit exclusively represented by the NTEU concerning grievances or any personnel policy or practices or other general conditions of employment.

(b) Post at its facility where employees in the bargaining unit 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 an appropriate official of the Respondent, and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous 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 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Region III, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply herewith.

Issued, Washington, D.C., April 28, 1986.

/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY

FOOTNOTES$ -----

(1) The Authority issued its original decision on this matter on September 15, 1983, in which it found that the Respondent, Bureau of Government Financial Operations, Headquarters, had not violated section 7116(a)(1) and (8) of the Federal Service Labor-Management Relations Statute and ordered that the complaint be dismissed, Bureau of Government Financial Operations, Headquarters, 13 FLRA 27 (1983). Subsequent thereto, the Union petitioned for review of the Authority's decision in the U.S. Court of Appeals for the District of Columbia Circuit (No. 83-2180). Thereafter, the Authority filed and the court granted a motion to remand in order to allow the Authority an opportunity to address with more particularity in a supplemental decision the application of Internal Revenue Service and Brookhaven Service Center, 9 FLRA 930 (1982), to the instant case.

(2) Section 7114(a)(2)(A) provides:

Section 7114. Representation rights and duties

. . . . . . .

(a)(2) An exclusive representative of an appropriate unit in an agency shall be given the opportunity to be represented at --

(A) 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(.)

(3) Section 7116(a)(1) and (8) provides:

Section 7116. Unfair labor practices

(a) For the purpose of this chapter, it shall be an unfair labor practice for an agency --

(1) to interfere with, restrain, or coerce any employee in the exercise by the employee of any right under this chapter;

. . . . . . .

(8) to otherwise fail or refuse to comply with any provision of this chapter(.)

APPENDIX

NOTICE TO ALL EMPLOYEES

PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR RELATIONS AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71 OF TITLE 5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS WE HEREBY NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT conduct formal discussions with employees in the bargaining unit exclusively represented by the National Treasury Employees Union, concerning grievances or any personnel policy or practices or other general conditions of employment, without affording the NTEU prior notice of, and the opportunity to be represented at, such formal discussions.

WE WILL NOT in any like or related manner interfere with, restrain or coerce our employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.

WE WILL notify the National Treasury Employees Union of, and afford it the opportunity to be represented at, formal discussions with members of the bargaining unit exclusively represented by the NTEU concerning grievances or any personnel policy or practices or other general conditions of employment. (Agency or Activity)

Dated: . . . By: (Signature)

This Notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material.

If employees have any questions concerning this notice or compliance with its provisions, they may communicate directly with the Regional Director, Federal Labor Relations Authority, Region III, whose address is: 1111 18th Street, N.W., Room 700, P.O. Box 33758, Washington, D.C. 20033-0758 and whose telephone number is: (202) 653-8500.