AFGE BOOSTS BYPASS LEGAL PRECEDENT FOR ALL

Here is how it all started. Two employees filed formal “Behavioral Code of Conduct” reports with their manager alleging that a third employee was harassing them with comments about joining the union and how young they were, calling them jailbait. Soon, thereafter, the manager approached the third employee to tell him about the allegations and to suggest that if the employee moved to a different floor in the hospital the complaints might be settled. The employee refused, but one of the complaining employees moved instead. Did the manager quickly defuse a bad situation or violate the law?

The answer, according to FLRA, is that the manager violated the law by bypassing the union. (AFGE, 68 FLRA 882) That is a well-used part of the statute prohibiting a manager from approaching a unit employee about solving grievances/complaints or changing working conditions without involving the union in the discussions or even dealing with them directly. The agency, the VA, responded by throwing a kitchen sink full of defense arguments at the Authority. Although they all failed, that strategy gave FLRA the opportunity to update and affirm several questions of law related to bypass. We have summarized them below.

First, the Authority spelled out the basic concept of bypass by quoting another AFGE decision addressing bypass”

Agencies unlawfully bypass an exclusive representative when they communicate directly with bargaining unit employees concerning grievances, disciplinary actions and other matters relating to the collective bargaining relationship. Such conduct constitutes direct dealing with an employee and is violative of section 7116(a)(1) and (5) of the Statute because it interferes with the union’s rights under section 7114(a)(1) of the Statute to act for and represent all employees in the bargaining unit. Such conduct also constitutes an independent violation of section 7116(a)(1) of the Statute because it demeans the union and inherently interferes with the rights of employees to designate and rely on the union for representation.  (See AFGE, 51 FLRA 1339)

Second, when the agency argued that the employees’ complaints were not filed under the negotiated grievance procedure, the FLRA responded saying that it is going to apply a very broad definition of what is a grievance for purposes of bypass, namely, “…a complaint by employees concerning the conduct of another employee in the workplace meets the statutory definition – ‘any complaint . . . by any employee concerning any matter relating to the employment of that employee.’ Furthermore, the Authority has found that § 7103(a)(9) of the Statute does not limit the definition of grievance to formal grievances.”

Third, when VA argued that the managers meeting with the complained about employee was “haphazard, unorganized and brief,” the Authority said the brevity of a discussion directly with a unit employee about anything that can be considered a grievance is irrelevant.

Fourth, the agency claimed that because moving an employee to another floor is a management right and it had not yet made a decision to do so the union was protected because it would have been give in the right to bargain the impact and implementation of the change if management ultimately made it. FLRA labeled all that irrelevant as well, reminding management that once it approached the employee directly Rather than going to the union, it violated the law.  It gave the same ruling when the agency argued the potential change was de minimis.

Finally, when the agency argued that precedent allowed it to question employees directly to gather information and opinions from bargaining unit employees to promote the efficiency and effectiveness of operations, the FLRA said it did much more than that in this case. The manager was “…not merely ‘gathering information’ or ‘opinions’ from his employee…. This was not s survey or poll, and [the Respondent] was not seeking general information or opinions; he was specifically trying to obtain [the employee’s] consent to a change in his conditions of employment.”

Perhaps the most vivid lesson-learned message here is for management. Managers need clearer instructions on what to do when an employee files a complaint. They should have an easily available source that reminds them about the EEOC and FLRA obligations not to retaliate against the complaining employee for raising the matter, the FLRA “formal discussion” obligation not to meet with the complaining/grieving employee directly with inviting the union to at least attend, and to not contact other unit employees to see of a quick solution can be worked out. We understand a manager’s natural inclination to try to solve any dispute between his/her employee quickly, quietly, and informally. But the law must be considered.