UNION REPRESENTATION IN THE PROCESSING OF A FORMAL COMPLAINT

 

General Information

 

In accordance with 7114(a)(2)(A) of the Statute, the union has the right to be represented at formal discussions between management and bargaining unit members.

 

EEO complaint proceedings at the formal stage may constitute a formal discussion.  For purposes of the Statute, a formal EEO complaint constitutes a grievance, and the union has the right to be present whenever a management representative has a substantive discussion with a bargaining unit member about  a grievance.  An EEO Specialist or EEO Investigator is considered, for these purposes, to be a management representative. 

 

The obligation to extend the right to be present at discussions to the union would include any discussions between EEO Specialists/Investigators and bargaining unit members regarding the investigation of the complaint or any settlement/mediation discussions at the formal stage.  This obligation DOES NOT extend to any discussions with a counselor or mediator at the informal, or pre-complaint, stage.

 

The right to representation extends to the union regardless of whether the union is named as the employee’s personal representative.  It may be possible, therefore, for situations to arise when the employee’s personal representative, as well as the union representative, is present during discussions.

 

The union’s right only extends to interviews or formal discussions with bargaining unit members.  The union has no right to attend such discussions with employees who are not members of the bargaining unit.  It is the Department’s position that the right does not extend to former bargaining unit members.

 

What is a formal discussion?

 

The factors set forth below provide some general guidance for recognizing if a meeting is a formal discussion.  Not all of these factors need to be present for a meeting to be a formal discussion.

 

1.      Who will attend the meeting?

 

If the meeting/discussion involves both a person who represents management and at least one employee who is in the bargaining unit, it may be a formal discussion.  As noted above, EEO Investigators, EEO specialists and mediators, while considered to be neutrals, are considered representatives of an agency for 7114 (a)(2)(A) formal discussion purposes.  This applies even if the investigator or mediator is a contractor or “outside” investigator or mediator.

 

2.      What will be discussed at the meeting?

 

The Statute defines the word “grievance” very broadly.  If the meeting involves a discussion of a grievance filed under the negotiated agreement, an appeal to the Merit Systems Protection Board (MSPB) or an EEO complaint filed by a bargaining unit employee, it may be a formal discussion.

 

3.      Is the meeting/discussion “formal” or a casual conversation?

 

The law is not intended to require the presence of a union representative every time some aspect of working conditions or personnel policy is mentioned in passing.  To determine whether the discussion is formal, the FLRA looks at how “formal” the meeting is.  If a meeting is pre-scheduled, is attended by several persons on either side, has a definite agenda, is recorded in formal notes or minutes, requires mandatory attendance, or is attended by someone higher than a first level supervisor, it is likely to be seen as a formal discussion. 

 

For our purposes, a scheduled interview between a witness who is a bargaining unit member and an investigator is considered to be a “formal” meeting.  Similarly, a meeting to discuss/negotiate settlement of a complaint is a “formal” conversation.  If these meetings are done by telephone, rather than in person, they are still considered formal discussions.  However, a request to complete written interrogatories is not considered a formal discussion.

 

When a formal discussion is scheduled

 

Management is required to provide the union with adequate prior notice of a formal discussion and an opportunity to attend the meeting (unless the parties have agreed to other arrangements) or the employee witness objects.  You need to be aware of any specific provisions in a collective bargaining agreement that covers union notification of formal discussions.

 

The Specialist[1] should notify the employee that a formal discussion will be held; the union’s entitlement to attend; and its role in the proceedings.  In accordance with guidance published by the Equal Employment Opportunity Commission (May 31, 2005), the Specialist may ask whether the employee objects to the union’s presence at any settlement discussions, mediation or interviews.[2]  If the employee objects, the Specialist will make note of the objection.  The Specialist must be careful not to give his or her personal opinion regarding union presence or to appear to be influencing the employee one way or the other regarding union presence at the meeting.  In those cases where the employee objects to the union’s presence, the union will not be notified of the meeting. 

 

If there is no objection, the EEO Specialist will inform the union when an interview with a bargaining unit member is scheduled.  Therefore, EEO investigators must give adequate notice to the EEO Specialist before scheduling a formal discussion with bargaining unit members, so that the proper notification can be made.  Such notice must include the list of witnesses to be interviewed which will enable the Specialist to determine who is a member of the bargaining unit.  Adequate notice is considered to be enough time for the union to arrange for a representative to attend the meeting, as allowed by circumstances. For example, if the Specialist has 2 weeks notice of the meeting, notification should be provided as soon as possible.  If the Specialist has only 2 days notice, notification should be provided immediately.  If questions arise as to when the Specialist became aware of the need for a meeting, he/she may be asked to provide information showing notification was not unnecessarily delayed.

                                           

If notification is appropriate, the Specialist should provide the notice to the union in writing.  It is recommended the Specialist request the union representative sign for receipt of the written notice.  Should there be any question as to whether management did provide notice, a receipted copy of the notice will be invaluable.

 

Before an EEO Investigator comes on site or initiates a telephone interview, the investigator must verify with the Specialist that the union was given the appropriate notification.  If during the course of an investigation, it becomes necessary to interview a bargaining unit employee who was not initially scheduled for an interview, the Investigator shall coordinate the notification requirement with the Specialist before interviewing the employee. 

 

If notice is given and the union does not attend, management has fulfilled its obligation by providing notice and may proceed with the meeting.

 

Union Representation at the Meeting

 

The union has the right to choose which representative it wants to send to the meeting.

 

If a union representative does attend, the representative may:

          -ask clarifying questions

          -state the union’s views

          -agree or disagree with management’s views

         

The union representative may not:

          -disrupt the meeting

          -take over the meeting

          -bring the meeting to a halt

          -engage in egregiously disrespectful or antagonistic behavior

          -answer for the employee

-instruct the employee not to answer questions or provide a completed, signed affidavit or interrogatory

 

If the union representative becomes disruptive, management’s options are:

          -stop the meeting

          -ask the union representative to stop the disruption

-if the request is not complied with, ask the union representative to    leave        

-be prepared to provide sound reasons for asking the union representative to leave and to document what occurred

 

 

Settlement Discussions

 

The duty to bargain with the union may extend to settlement discussions when the Complainant is a member of the bargaining unit, depending on whether the proposed settlement requires a change in an established term and condition of employment.  Again, a settlement agreement conference or mediation session in the formal complaint process is considered a formal discussion, giving the union the right to attend absent an objection by the Complainant. 

 

If there is no objection, the Bureau must give the union notice that a settlement discussion will be held, and provide the union the opportunity to attend.  Therefore, the Specialist is responsible for notifying the union of the settlement discussions or mediation.

 

If the proposed settlement agreement requires a change in a condition of employment, the Agency has a duty to bargain with the union.  An EEO settlement agreement that violates a collective bargaining agreement may not be a valid, enforceable agreement.

 

 


[1] The use of the term Specialist and Investigator usually refer to employees of the Treasury Complaint Center.  However, in the Office of the Comptroller of the Currency, during its complaint processing pilot, these terms refer to OCC employees or contractors fulfilling these roles.

[2] Because IRS has already entered into an agreement with the union (NTEU) stating the agency will not ask employees whether they object to the union’s attendance at EEO proceedings, the Specialist should not ask the employee when investigating IRS cases.  However, if the employee objects sua sponte, the objection will be honored.  Moreover, if the employee asks the Specialist a direct question concerning whether the union must attend, the Specialist may inform the employee they can object to the union’s presence.