Social Security Administration, Office of Hearings and Appeals, Boston Regional Office, Boston, Massachusetts and American Federation of Government Employees, Local 1164, AFL-CIO, BN-CA-02-0266 and -0434, April 30, 2004, 59 FLRA No. 160.

Based on "formality" criteria, the Authority found that one phone call to an employee at work was not a formal discussion; but two calls to employees at home were formal discussions. It directed that copies the mea culpa notice be furnished to the head of the EEO program as well as to all contract investigators.

The agency had contracted with the Southwind Corporation to conduct investigations of EEO complaints filed by employees against the agency. One investigator (Michael Gear) had a phone conversation with a unit employee (Rosanne Moore) while she was at work, in which Gear spoke with Moore about a co-worker who had filed an EEO complaint. However, when Gear began asking questions about Moore's performance, she said that she didn't see the relevance of this line of questions. When Gear declined to explain the relevance, Moore terminated the call.

Another investigator (Dyanne Engberg) sent an e-mail to Colleen Barry, explaining she needed to interview Barry about the formal complaint filed by another employee and gave Barry the option of being interviewed by telephone at work or at work. Barry preferred being called at home, and so an appointment was made for January 30 at 6:30 p.m. The interview lasted for about 20 minutes and, with Barry's knowledge, was tape recorded. Engberg told Barry she'd send her a statement of their conversation which Barry was to correct, sign, and return to Engberg.

Ms. Engberg also sent an e-mail to Kathy Houba-Kane who also indicated she preferred to be interviewed at home. She was called at the pre-arranged date, and was told that the conversation would be recorded and that a copy of it would be sent to her home address. However, the copy was e-mailed to Houba-Kane at work rather than to her home.

The Authority found the Gear-Moore phone conversation wasn't a formal discussion because it didn't satisfy FLRA's criteria of "formality" -- "the interview was not scheduled in advance, took place in the employee's private office, was terminated by the employee, and was not documented by affidavit or confirming letter." FLRA accordingly dismissed this particular complaint.

However, the two conversations with Ms. Engberg were found to satisfy the formality criteria. In both instances the employees received advance notice of the topic of the conversation, the interview was tape-recorded, and a statement describing the conversation was sent to the interviewees. FLRA went on to find that Ms. Engberg was a representative of the agency and the investigatory interviews concerned a "grievance" within the meaning of §7114(a)(2)(A).

FLRA found that the ALJ erred in ordering that the mea culpa notice should be signed by the agency's national civil rights director, given that there was no allegation that the violations occurred because of the agency's nationwide EEO policy. FLRA instead determined that the appropriate official to sign the notice was the highest management official at the location were the violations occurred. However, a copy of the notice was to be sent to the national director and all contractor investigators to ensure that they were made aware of the violations.