Per the Federal Labor Relations Act, an Exclusive Representative of an established bargaining unit has the right to be represented at “ any formal discussion between one or more representatives of the agency and one or more employees in the unit… concerning any grievance or any personal policy or practices or other general condition of employment”
This statement is vague at best and has been the subject of a multitude of arguments for years. The flurry of decisions that have come out of decades of arguing, at least according to the FLRA must be identified by the totality of the circumstances that surround the ‘discussion’. Here we will try to break down what constitutes as a formal discussion and therefore, entitles the presence of a Union Representative.
The first factor to be considered is who is present at the discussion. This factor is fairly simple, in order to be considered a ‘Formal’ discussion, the exchange must include at least one representative of agency management and one bargaining unit employee. It is not necessary that the agency representative be designated as a supervisor or management. Even those in positions such as HR specialists, attorneys for the agency and investigators can fulfill the role of agency representative. It is also good to maintain that bargaining unit employee is not specifically dues paying here on the shipyard as all employees are covered.
The second factor to be considered is the topic/s of the discussion. Typically, topics that fall under the ‘Formal’ discussions include Conditions of employment and Grievances. These can include personnel policies, practices or working conditions that apply to the bargaining unit in general (rather than just a single employee). An example would be counseling a single or small group of employees about taking too long of a lunch is not a formal discussion but changing the time of the scheduled lunch would be.
Falling into the second category is also Grievances. The FLRA includes a broad description of grievance that boils down to any complaint filed by an employee against the agency that falls under the protection of the FLRA statute, but also extends to cover settlement discussions for EEO complaints and MSPB appeals, as well as interviews of potential witnesses for ULP or arbitration hearings.
The third factor is broken down into ‘Formality’. This factor can be left to interpretation at times and can be a little tricky to pin down. Your Union Representative is one who would be able to navigate the ambiguity of this factor. This typically includes definitions as follows:
1. Level and number of management representatives in attendance. In most cases--though not all--discussions involving only immediate supervisors do not qualify as formal. Add a higher level official or two, however, and there's a good chance it will.
2. Location of the discussion. So-called "shop floor" discussions are much less likely to be viewed as formal. Those in which employees are assembled to hear a presentation are more likely to be viewed as formal.
3. Scheduled versus spur-of-the-moment. Discussions that are scheduled are more likely to be viewed as formal than those that arise spontaneously.
4. Duration. Longer is more likely to be formal than shorter.
5. Agenda. Meetings that proceed according to a planned agenda are more likely to be deemed formal than those that just meander along under their own power.
6. Mandatory or voluntary attendance. This is less reliable as an indicator, since few discussions with one's supervisor can realistically be viewed as purely voluntary. On the other hand, if a meeting is scheduled and attendance is stressed as being mandatory, it adds a degree of formality.
7. Notes or minutes. If meeting notes or minutes are taken the meeting is more likely to be viewed as formal than one in which no notes are kept.
8. Purpose. The FLRA has held that some topics, such as the announcement of a pending RIF, are by their very nature formal, regardless of the trappings surrounding the discussion.
These 3 factors are the primary Elements of what makes up a ‘Formal Discussion” and guarantees the right of the Representatives of the Bargaining units’ presence. It is the responsibility of the agency to give a timely notification the Union of any such formal discussions so to have a designated representative present at such discussions. If you believe that a formal meeting has taken place without union representation, don’t be afraid to raise the question or to reach out to your local rep and let us know.