Management has a positive obligation to invite the union to attend any formal discussion between one or more representatives of the agency and one or more employees in the unit or their representatives concerning any grievance or any personnel policy or practices or other general conditions of employment.
There are two key characteristics in determining whether a discussion is a "formal discussion" thus requiring the union to be invited or some other type of discussion supervisors may have with their employees without having to invite the union to attend:
- who will be at the meeting; and
- the subject of the discussions.
Who will be at the meeting: For a meeting to be considered a formal discussion, it must include:
- one or more representatives of the agency (e.g., supervisor(s), management official(s), personnelist(s), or attorney(s)); and
- one or more employees in the bargaining unit or their representative(s).
The subject of the meeting: A meeting does not become a formal discussion unless the subject concerns an individual's grievance or general conditions of employment.
-- Grievances: A discussion between management and a grievant relating to a grievance is a formal discussion. (Presently, the Federal Labor Relations Authority (the Authority or FLRA) considers formal EEO complaints as grievances for purposes of formal discussions.) The union must be invited to attend even if the employee is representing him or herself in the negotiated grievance proceeding and the grievant does not want the union to attend.
-- Working Conditions: Discussions with bargaining unit members about general conditions of employment or personnel policies and practices. Normal shop talk is not a formal discussion.
The Authority has identified certain factors it will look at in determining whether a meeting was a formal discussion:
- whether the individual who held the discussion is a first-level supervisor or is higher in the management hierarchy (the higher the level, the more a formal discussion is indicated);
- whether any other management representatives attended;
- where the individual meeting took place (i.e., in the supervisor's office, at each employee's desk, or elsewhere);
- how long the meeting lasted;
- how the meeting was called (i.e. with formal advance written notice or more spontaneously and informally);
- whether a formal agenda was established for the meeting;
- whether each employee's attendance was mandatory; and
- the manner in which the meeting was conducted (i.e., whether the employee's identity and comments were noted or transcribed.)
The above list provides indicators of a formal discussion; they need not all be present for the Authority to find a meeting was a formal discussion. The Authority looks at the totality of the meeting and not just any single factor.
If the meeting meets the definition of a formal discussion, the supervisor must invite the union to attend. Having a shop steward, who works in the supervisor's office, at the meeting in his or her role as an employee does not meet this obligation. Rather, the supervisor must invite the union to the meeting with the union being free to designate whom it wants to act as its representative.
Finally, the union is allowed to participate in these formal discussions by raising questions/comments/concerns, but it cannot disrupt the meetings.
Failure to invite the union to attend a formal discussion could result in a grievance or unfair labor practice.