FLRA FUBAR: THE FORMAL DISCUSSION MESS
“Formal discussions” are the most common labor-management interactions in the federal sector. With tens of thousands of managers, there are likely over 100,000 a year. But, thanks to FLRA, the concept is probably the most difficult to administer and “fouled up beyond all reason.” So, FEDSMILL.com is putting the “FLRA FUBAR” label on this area of case law. (This is the first in our FUBAR series. See the menu bar.)
In a nutshell, FLRA requires that the parties apply 12 criteria to decide whether a meeting is formal—and it admits that list is neither exhaustive nor binding. There are “other factors” that FLRA reserves the right to consider that it is not going to tell the labor-management community about yet. (LIUNA, 14 FLRA 475) The first step in the process is to apply a four-part criteria, namely, a meeting is formal if there are–
1. at least one representative of agency management and at least one bargaining unit employee in attendance;
2. a discussion which is
3. formal in nature, and
4. concerns either a grievance or a personnel policy, practice, or other condition of employment of unit employees. (AFGE, 64 FLRA 166)
The first criterion is easy; the second is tricky because there need not be a two-way conversation (NAGE, 62 FLRA 219); and the fourth has generated considerable litigation all by itself. But the real enigma is the third criterion. The FLRA has told practitioners to look at eight aspects of a meeting to decide whether it meets criterion three. They are:
(1) whether the meeting was held by a first-level supervisor or someone higher;
(2) whether other management representatives attended;
(3) where the meeting took place;
(4) how long the meeting lasted;
(5) how the meeting was called;
(6) whether a formal agenda was established;
(7) whether attendance was mandatory; and
(8) the manner in which the meeting was conducted (whether comments were noted or transcribed).
It would be charitable to call that list hopelessly vague; it would be more accurate to call it sinister and destructive. For example, whose attendance is more important in (1)? The supervisor’s or someone higher? Does it matter in (2) why other management officials might have attended or how they participated? In an age of telework, conference calls, webinars, and Skype does the location mentioned in (3) really matter? How long is long enough or too long to satisfy (4)? To top it all off, sometimes the FLRA uses a seven-part test while at other times its decisions turn on the single criterion of the purpose of the meeting. (AFGE, 47 FLRA 170 and NFFE, 60 FLRA 644) (If you are interested in the ancient history of where these factors came from, read MTC, 1 FLRA 240. The short explanation is that it was decided, “. . . the question of whether a meeting is ‘formal’ or informal is essentially a factual determination which, in our view, is a matter best resolved on a case-by-case basis by the Assistant Secretary as finder of fact.” Apparently, someone thought it wise for an Assistant Secretary of Labor to get involved to decide whether a meeting was formal. Truly absurd.)
Moreover, “a meeting can have some indicia of formality and yet, based on the totality of the circumstances, not be a formal discussion.” (AFGE, 63 FLRA 440) In other words, there is no minimum number of indicators, nor even an adequate arithmetical mix of them. There are even times when the only factor that need be considered is the “purpose” of the meeting. (LIUNA, 37 FLRA 952) Do you see why practitioners go nuts trying to administer this provision?
FEDSMILL.com recommends that the next time the Authority addresses one of these cases that it remind itself that the fundamental goals of the statute are to produce “amicable settlements” and to contribute to an “efficient and effective government.” Its current case law, in contrast, breeds disputes rather than settlements and stands in the way of the efficient implementation of the concept.
The Authority should also remind itself that the stakes are high when formal meeting errors are made. If managers wrongly exclude the union, labor-management tensions and liabilities rise, e.g., managers may have to redo the meeting. (AFGE, 32 FLRA 465) Even when they correctly exclude the union, tensions also can spike if the union reads the law differently, which is very easy to do. Consequently, both parties need an easy-to-apply definition of a formal meeting to avoid the consequences of guessing.
The third concept FLRA needs to refocus upon is the power the Supreme Court gave it when it wrote the FLRA is “‘entitled to considerable deference when it exercises its special function of applying the general provisions of the Act to the complexities ‘of federal labor relations.’. . . [Disputes are] ‘to be resolved . . . in light of everyday realities.’” (NFFE, 526 U.S. 86)
One way out of this mess is for the FLRA to formally put to rest the seven or eight indicia. Don’t just ignore them; disavow, mock, burn, and bury them. Then turn to the legislative history of the formal discussion provision as reviewed in AFGE, 52 FLRA 149. There FLRA recognized that the current formal discussion right flowed from the so-called Udall Amendment which strongly suggested that unions were to be invited to all employee-management discussions except those of a “highly personal” nature. Udall inserted the word “formal” into the statutory draft to memorialize that concept.
If re-adopted, practitioners could apply the four-part criteria knowing that only where a discussion is about something “highly personal” would they even have to think twice about what the law requires. Taking this approach would not only align case law with legislative intent, but enable unions to “safeguard their interests” while also respecting the public interest in an individual’s privacy. It would also increase the odds that a union would catch a unilateral change early before it is costly to unravel and prevent bypasses. (AFGE, 64 FLRA 166)
A second approach would be to restructure the four criteria and seven or eight indicia into a shorter, prima facie test. For example, the Authority could decide that the formality of a discussion will be presumed if (1) a management official or representative of any kind called the meeting (2) of one or more unit employees (3) about personnel policies, practices and general conditions of employment, but (4) not something that is highly personal to just one individual. If those four elements are not present, the union would have a heavy burden to prove the meeting is nonetheless formal. Similarly, if they are, management’s challenge would be similarly steep to prove it is not formal.
In 2009 Members Pope and Beck decided a formal discussion case by applying the seven indicia (AFGE, 63 FLRA 169) three months later they used the eight indicia. (AFGE, 63 FLRA 440) However, in September 2009, after Member Dubester had joined them, they issued another formal discussion decision without using either the seven or eight factor approach. (AFGE, 64 FLRA 166) Perhaps it is reading too much into that omission to conclude that the Authority has seen the errors of its ways. But it does generate some optimism. The Authority has looked hard at a number of minutes rule in the past, rejecting it in some cases (AFGE, 29 FLRA 1205) and accepting it in others. But we do not see any way to build a government-wide rule around that approach. Perhaps individual parties can make that kind of rule work via negotiations.
If there is any doubt as to the workability of current case law, note that FLRA and its ALJs has had to issue nearly 50 “formal discussion” cases since the turn of the century. Does that sound like practitioners have an easy-to-apply rule?