UNION REP TEST #18 – (Attending Formal Discussions)
Very few unit employees will ever see union leaders negotiate a contract or even represent a co-worker in a grievance. But if the union uses its right to attend all formal discussions, every unit employee will see union reps in action several times a year. It is the single best way to demonstrate union expertise and clout to the employees you want to pay dues. So, it is important to know what a union’s rights are to attend and be active in these discussions. Listed below are statements about formal discussion law and representational tactics. Indicate whether the statement is True or False. The answers, along with some case citations for further research, follow the questions.
1. A formal discussion (or just a formal management announcement at a meeting without a two-way discussion) includes any meeting run by an agency official that addresses personnel policies, practices, or general working conditions, e.g., how to change the way a certain work task is performed.
2. An agency meeting with an employee who filed her own EEO complaint as well as an EEO investigator’s meeting with a complaining employee to prepare the report can both be formal discussions.
3. An agency pre-hearing interview of a unit employee as a mere witness during an arbitration or MSPB hearing can be formal discussions to which the agency must invite the union to attend.
4. A telephone or on-line meeting can be a formal discussion.
5. A formal discussion can include a discussion with an employee about a last chance agreement.
6. A formal discussion can include a discussion with an employee about performance problems.
7. By law, the agency must notify the union in advance of any formal discussion a manager plans to have with unit employees and invite the union to send a rep to the meeting –even if one of the employees scheduled to be at the meeting is a union rep.
8. An agency’s advance notice of a formal meeting must include a copy of the agenda.
9. The statute provides that the union be given the “opportunity to be represented” at formal discussions. The union’s right to be represented at formal discussions means more than merely a right to be present, and encompasses the right to comment, speak and make statements, so long as the representative does not take charge of, usurp, or disrupt the meeting. Generally, this means the rep cannot address topics outside the manager’s agenda, be loud or insulting, interrupt the manager, or try to take control of the meeting. But they can offer explanations of matters that contradict the manager’s and their request to speak must be honored by the manager.
10. A union rep attending a formal discussion can identify him/herself at the beginning of the meeting for the attendees so they know their union is present and that the rep will play a different role than the other employees.
11. If there is downtime in a manager’s formal discussion with employees, e.g., the manager takes a break to take a phone call, the union rep is allowed to ask the nonmembers at the meeting to join the union.
12. The union has the right not just to speak up at the meeting on behalf of the union, but to tell employees to come see him or her after the meeting if they have any concerns.
13. If the manager uses a group meeting to announce she is changing an unwritten past practice in the group, e.g., when weekly reports are due or to change the time period during which employees can take breaks, the union rep can ask if the manager has given the union advance notice of that change and make the group aware of the manager’s legal obligation not to implement until the union has been given sufficient advance notice of the change and decided whether it wishes to bargain over the change.
14. If a manager uses a formal group meeting to inform employees that an office-wide change is being implemented, the union rep can speak up to mention that an agreement has been negotiated with the union, review briefly some highlights of the agreement and tell employees where they can get a copy of the agreement.
15. If a manager announces in a formal discussion some action which the union rep believes violates the agreement, regulation or law, the union rep can tell the group that the union believes the action is not authorized and that it will file a grievance to oppose it.
16. If a topic comes up in a formal meeting that leads to a discussion with the employees that involves the manager going back and forth with the group about what to do to meet their concerns and ends with the manager committing to do something the majority of the group supported, the union can file a ULP against the manager to stop implementation.
17. The union rep can follow-up a meeting by sending the employees who attended an e-mail addressing the issues covered more fully.
18. Formal discussions are a good place to scout for employees who seem to be natural leaders in the group and to encourage them to get more actively involved in the union.
1. True. See 37 FLRA 747 But the legal analysis involved when the agency and union disagree that something qualifies as a formal meeting can be a nightmare. Check out “FLRA FUBAR: The Formal Discussion Mess.”
2. True. See 64 FLRA 845, 57 FLRA 304, and 52 FLRA 149,
3. True. See 47 FLRA 170 and 44 FLRA 408
4. True. See 59 FLRA 875. Also Check out “The Automated Formal Discussion.”
5. False. See 38 FLRA 309. An exception would be where the last chance discussion involved working conditions impacting employees other than the one under the last chance agreement, e.g., if the discussion or agreement involved setting a standard that would apply to the employee and all other similarly situated employees in the unit for the first time.
6. False. See 5 FLRA 421. The FLRA decisions on this make little sense to us given that often even a performance counselling meeting involves a manager probing why an employee did or did not do something. When coupled with the fact that during the counselling sessions the employee has no idea whether the manager is going to use discipline or adverse action procedures on the employee there is no reason to distinguish these meetings from normal discipline investigations. Moreover, if the counselling session addresses applying standards to the employee that are going to be applied to others that could make it a formal meeting.
7. True. See 56 FLRA 683
8. False. Case law has not settled this yet, although it seems logical, e.g., how would the union know who to send to the meeting if they do not know what will be discussed. Until this is settled case law, unions should negotiate for the right to an agenda and any other prep material that would be helpful.
9. True. Check out 21 FLRA 765. Generally, this means the rep cannot address topics outside the manager’s agenda, be loud or insulting, interrupt the manager, or try to take control of the meeting. But they can offer explanations of matters that contradict the manager’s and their request to speak must be honored by the manager. Unions can bargain in their term contract negotiations for even more participation rights.
10. True, so long as the self-introduction neither usurps or disrupts the manager’s presentation.
11.. True. See 61 FLRA 562
12. True, so long as that comment is not disruptive.
16. True. This would likely be an illegal bypass of the union’s right tohave all negotiations over changes in working conditions occur with it, not unelected or unappointed union officials. See “Union Rep Test #12.”
17. True. The union always has the right to communicate with employees.
18. True. Check out “10 things To Do At A Formal Meeting.”
Although it does not cover all the more than 200 FLRA decisions involving “formal discussions,” check out the Authority’s Guidance on Meetings” to start any research on the issue.