Petition for Writ of Certiorari — Federal Labor Relations Authority v. Luke Air Force Base

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99-1939

In the Supreme Court of the United States

OCTOBER TERM, 1999

FEDERAL LABOR RELATIONS AUTHORITY, PETITIONER

VU.

LUKE AIR FORCE BASE, ARIZONA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

DAVID M. SMITH*

Solicitor

JAMES F. BLANDFORD

Attorney

JUDITH A. HAGLEY

Attorney

Federal Labor Relations Authority

607 14th Street, N.W.

Washington, D.C. 20424-0001

(202) 482-6620

*Counsel of Record

QUESTION PRESENTED

Whether a union’s statutory right to attend “any formal

discussion” between an agency employer and a bargaining

unit employee regarding “any grievance” includes

discussions concerning the employee’s discrimination

complaint filed under Equal Employment Opportunity

Commission procedures.

(I)

TABLE OF CONTENTS

Page

a ee NN oy bad wba ee awk bok be de 1

Ia a aoe 1

STATUTORY PROVISIONS INVOLVED ....... 2

es vegan eae 2

A. The Federal Service Labor-Management

a eekacue’s 2

Be ee kbd ed bw o 0 0's 4

1. Factual Background ......cceccceees 4

2. Relevant Judicial and Administrative

I eee ca aa peteeee oe 6

a. The Ninth Circuit’s Decision in /RS,

es Gi Uk we aca eo 7

b. The D.C. Circuit’s Decision in

SE Ee cans c ube cabarase 8

ce. The Tenth Circuit’s Decision in

Viaes BPOOY Vi PLA onc cc ccs cess. 8

d. The Ninth Circuit’s Decision in

VA, Long Beachv. FLRA .......... 9

3. The Ninth Circuit’s Decision in

CIE ee eed Sewer es 9

(III)

REASONS FOR GRANTING THE PETITION .. 10

A. The Decision of the Court Below

Conflicts with That of Two Other

Circuits and Another Panel Within

Cia Dees SOND 2G Cis dew wes bkieanas 11

ee ee Be re rere 11

2. The Conflict Must Be Resolved ....... 13

B. The Court of Appeals Erroneously

Determined That EEO Complaints ‘

Are Not Grievances for Purposes of

Section T114(aENA) o. ooc cc ccwscs sacs 14

1. The Express Language of the Statute . 15

2. The Legislative History of the Statute. 18

3. The Purpose of the Statute’s

FRONRIIOE oh. 6eS RISES 18

CONUIAIERUIE. Ss 6 0 hh aR eine aed see adkkeeean 20

Appendices:

A. Opinion of the United States Court

of Appeals for the Ninth Circuit,

Een BO, BOS oie ski oc vw dua’ Al

B. The United States Court of

Appeals for the Ninth Circuit’s

Denial of the Authority’s Petition

for Rehearing and Petition for

Rehearing En Banc, March 14, 2000 ..... Bl

C. Decision and Order of the Federal

Labor Relations Authority in

Luke Air Force Base. 4rizona

and American Federation of

Government Employees,

Local 1547, 54 FLRA 716 (1998) .......

D. Relevant Portions of the Federal

Service Labor-Management

Relations Statute, 5 U.S.C.

7101-7135 (1994 & Supp. III 1997)

and of the Equal Employment

Opportunity Commission

Regulations, 29 C.F.R. pt. 1614 (1999) ..

E. Luke Air Force Base’s Request for

Publication, January 10, 2000..........

TABLE OF AUTHORITIES

Cases:

American Fed’n of Gov't Employees, Local

3882 v. FLRA, 865 F.2d 1283

CE ep arieen ee ne

Bureau of Alcohol, Tobacco & Firearms v.

F LRA, 464 U.S. 89 (1988) ................

Bureau of Gov't Fin. Operations,

Headquarters, 15 FLRA 423 (1985) .......

Department of Veterans Affairs Med.

Ctr. v. FLRA, 16 F.3d 1526

A TO id 5SS aloes 9, 10, 12, 13

Department of Veterans Affairs v.

FLRA, 3 F.3d 1386

(10th Gir. 1998)... 2.2... cceccee 8, 9, 11-13, 18

Emporium Capwell Co. v. Western Addition

Community Org., 420 U.S. 50 (1974) ......

Cases—Continued

Federal/Postal/Retiree Coalition v. Devine,

751 F.2d 1424 (D.C. Cir. 1985) ............ 2

Garner v. Teamsters Local Union

No. 776, 346 U.S. 485 (1978) ...... ccc eee. 13

General Servs. Admin., Region 9 &

American Fed’n of Gov't Employees,

Council 236, 48 FLRA 1348 (1994) ........ 3

Gustafson v. Alloyd Co.,

gtk BL Pere TTT sere Tee 15

In re Yochum, 89 F.3d 661 .

a, ED <b ck c's 00 cht udcndedcucbeus 15

Internal Revenue Serv., Fresno Serv.

Ctr. v. FLRA, 706 F.2d 1019

CR ae I eh oc os ee cakes s by de eke 7-14

Internal Revenue Serv., Fresno

_Serv. Ctr., Fresno, Cal.,

FPA LE LEE) ok sah bah k ka aes 7,8

Luke Air Force Base, Arizona,

BO FLA FiO Che a cei ech bes Be eaKN 1, 4-6

Luke Air Force Base v. FLRA,

Nos. 98-71173 & 98-71347

(9th Cir. Dec. 30, 1999) ........ we Sues passim

National Treasury Employees Union

v. FLRA, 774 F.2d 1181

GA: Sat: A. es ce VS 8-9, 11-13, 16-19

U.S. Dep't of Justice, Bureau of Prisons,

Fed. Correctional Inst. (Ray Brook, NY),

29 FLRA 584 (1987), aff'd sub nom.

VII

- Cases—Continued

American Fed’n of Gov't Employees,

Local 3882 v. FLRA, 865 F.2d 1283

es | ee in 3, 8

United States v. Nordic Village, Inc.,

TP ne eer ee ee ap eee 17

Statutes, rules, and regulations

Federal Service Labor-Management

Relations Statute, 5 U.S.C. 7101-7135

CEOS & Sapp. TIT IGG7) . ook ccc cance 2

OUT ss a 15

De TIN oo incc save ch ave 3-4, 8, 15

RFI FRM) co wo cocks dn ccaee 15

Ue TI soos asc kicccsin cava 2

q ce te, Ea ere a ane 2

5 U.S.C. 7114(a)(2)(A) ....... 3-9, 11-15, 18, 19

UES, FUN soins ns vs cnc kav 3, 6

APR Fe. ok iss vos os cep eh vac 3, 6

2): ob. SSeS ene eee 8, 16, 18

PU FI aos ec ek A 16, 17

RE POND oi ss koi occ eaccanvces 5

i NE oes akan: 16, 17

oeta ia os 16, 17

Re oe icc. ee 14

teen EE os 1

Vill

Statutes, rules, and regulations—Continued

Tet 2 ee ge 5 er oars) eee 4

eC Bes PR. ROUS GAOD 6 a 8s ss Sa noneceees 4

yp RE a eee ee 7

SCF. Pt. TIA GD 2 0 eh bias 7

Miscellaneous:

H.R. Rep. No. 95-1403, at 40 (1978) ............ 18

Iu the Supreme Court of the United States

OCTOBER TERM, 1999

FEDERAL LABOR RELATIONS AUTHORITY, PETITIONER

Vv.

LUKE AIR FORCE BASE, ARIZONA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

The Federal Labor Relations Authority (Authority)

petitions for a writ of certiorari to review the judgment

of the United States Court of Appeals for the Ninth

Circuit.

OPINIONS BELOW

The unpublished judgment and opinion of the court of

appeals is set forth at Appendix (App.) Al-A3.! The

decision and order of the Authority (App. C1-C29) is

reported at 54 FLRA 716.

JURISDICTION

The judgment of the court of appeals was entered on

December 30, 1999. App. Al. A petition for rehearing

was denied on March 14, 2000. Jd. at B1. The

jurisdiction of this Court is invoked under 28 U.S.C.

1254(1).

IThe court’s denial of the Authority’s petition for rehearing and

petition for rehearing en banc is also appended to the petition. App.

Bl.

STATUTORY PROVISIONS INVOLVED

The relevant portions of the Federal Service Labor-

Management Relations Statute, 5 U.S.C. 7101-7135

(1994 & Supp. III 1997) are reproduced in the appendix.

App. D1-D7.

STATEMENT

A. The Federal Service Labor-Management

Relations Statute

The Federal Service Labor-Management Relations

Statute (Statute) governs labor-management relations in

the federal service. Under the Statute, the respon-

sibilities of the Authority include adjudicating unfair labor

practice complaints, negotiability disputes, bargaining

unit and representational election matters, and resolving

exceptions to arbitration awards. See 5 U.S.C. 7105(a)(1),

(2); see also Bureau of Alcohol, Tobacco & Firearms v.

FLRA, 464 U.S. 89, 93 (1983) (BATF). The Authority

thus ensures compliance with the statutory rights and

obligations of federal employees, labor organizations that

represent such federal employees, and federal agencies.

The Authority is further empowered to take such actions

as are necessary and appropriate to effectively administer

the Statute’s provisions. See 5 U.S.C. 7105(a)(2)(1);

BATF, 464 US. at 92-93.

The Authority performs a role analogous to that of

the National Labor Relations Board (NLRB) in the

private sector. See BATF, 464 U.S. at 92-93;

Federal/Postal/Retiree Coalition v. Devine, 751 F.2d

1424, 1430 (D.C. Cir. 1985). Congress intended the

Authority, like the NLRB, “to develop specialized

expertise in its field of labor relations and to use that

expertise to give content to the principles and goals set

forth in the [Statute].” BATF, 464 U.S. at 97.

The Statute makes it an unfair labor practice for a

federal agency employer to, among other things,

“interfere with, restrain, or coerce any employee in the

exercise by the employee of any right under [the

Statute],” or “otherwise fail or refuse to comply with

any provision” of the Statute. 5 U.S.C. 7116(a)(1) and

(8). The instant case involves an unfair labor practice

under section 7116(a)(1) and (8) and concerns the

Authority’s interpretation of the representational right

set forth in section 7114(a)(2)(A) of the Statute.

Section 7114(a)(2)(A) provides that a federal agency is

obligated to afford the exclusive representative of an

appropriate bargaining unit an opportunity to attend “any

formal discussion” regarding “any grievance.” 5 U.S.C.

7114(a)(2)(A). The purpose of this statutory right is to

“provide the union an opportunity to safeguard its

interests and the interests of employees in the bargaining

unit — viewed in the context of a union’s full range of

responsibilities under the Statute.” U.S. Dep't of Justice,

Bureau of Prisons, Fed. Correctional Inst. (Ray Brook,

NY), 29 FLRA 584, 589 (1987) (Ray Brook), aff’d sub

nom. American Fed’n of Gov't Employees, Local 3882 v.

FLRA, 865 F.2d 1283 (D.C. Cir. 1989) (AFGE v. FLRA).

Specifically, the exclusive representative has a right

to be represented at such a discussion if there is (1) a

discussion; (2) which is formal; (3) between one or more

representatives of the agency and one or more unit

employees or their representatives; (4) concerning any

grievance or personnel policy or practice or other

general condition of employment. See General Servs.

Admin., Region 9 & American Fed’n of Gov’t

Employees, Council 236, 48 FLRA 1348, 1354 (1994).

The only element at issue in this case is the fourth —

whether the discussion concerned a “grievance.” The

Statute defines “grievance” as “any complaint — (A) by

any employee concerning any matter relating to the

employment of the employee.” 5 U.S.C. 7103(a)(9). The

question here is whether an employee's discrimination

complaint filed pursuant to the Equal Employment

Opportunity Commission’s (EEOC) procedures (29

C.F.R. pt. 1614) is a “grievance.”

In interpreting the statutory representation right set

forth in section 7114(a)(2)(A), the Authority has

determined that discussions between an agency

employer and a bargaining unit employee about the

employee’s EEO complaint concern a “grievance” as that

term is used in section 7114(a)(2)(A). App. C21-C23. As

such, when an agency employer holds a formal discussion

with a bargaining unit employee regarding that

employee’s EEO complaint without affording the union

adequate notice and an opportunity to be represented,

the agency violates section 7114(a)(2)(A) and commits an

unfair labor practice. See id. at C25-C26.

B. The Instant Case

1. Factual Background

This case is the most recent in a series of unfair labor

practice cases decided by the Authority and the courts of

appeals concerning whether a union has the right to be

represented during a formal discussion of an employee’s

complaint filed pursuant to a statutory procedure such as

that governing EEOC complaints or Merit Systems

Protection Board (MSPB) appeals (5 C.F.R. pt. 1201)

(hereafter referred to as “alternative statutory

procedures”) rather than pursuant to the grievance

procedure established by the parties’ collective bargaining

agreement. The case came before the Authority due to

events that occurred at Luke Air Force Base (Luke

AFB), Arizona:

The facts are not in dispute. The American Federation

of Government Employees, Local 1547 (the union) is the

exclusive bargaining representative for a unit of

employees at Luke AFB. On January 19, 1995,

representatives of Luke AFB met with Tillie Cano, a

bargaining unit employee, to discuss settlement of her

discrimination complaints filed pursuant to EEOC

procedures. Ms. Cano had named the union president as

her representative, and he had attended a meeting

between Ms. Cano and agency representatives the

previous day. However, the union president was never

told about the January 19 meeting, and it was eonducted

without him. At this meeting, Ms. Cano was presented

with a proposed settlement and, after some negotiations

between her and representatives of the agency, a

settlement was executed. App. C2-C3.

In response, the union filed an unfair labor practice

charge with the Authority, alleging that Luke AFB

violated the Statute by not providing the union with notice

and opportunity to attend the meeting during which a

bargaining unit employee’s EEO complaints were settled.

The Authority held that the January 19 meeting satisfied

the elements of a formal discussion and that Luke AFB

failed to provide the union with the opportunity to attend.

Specifically, the Authority held that Ms. Cano’s EEO

complaints constituted “grievances” within the meaning of

section 7114(a)(2)(A). App. C21-C23. Rejecting Luke

AFB’s assertion that under section 7114(a)(2)(A) a matter

cannot be a “grievance” where the parties have excluded it

from their negotiated grievance procedure (NGP), the

Authority held that the broad statutory definition of a

“grievance” is not dependent on the scope of the NGP2

2Under 5 U.S.C. 7121(a)(2), a grievance procedure negotiated as

part of a collective bargaining agreement “may exclude any matter

from the application of the grievance procedures which are provided

for in the agreement.” As authorized by this section of the Statute,

the collective bargaining agreement between the union and Luke

AFB excluded discrimination complaints from the scope of the NGP.

App. C21. The Authority, therefore, found that the agency

violated section 7116(a)(1) and (8) of the Statute by failing

to provide the union with notice and an opportunity to be

represented at the January 19 session. C25-26

On review, the Ninth Circuit reversed the Authority,

finding that discrimination complaints brought pursuant

to EEOC procedures are not “grievances” within the

meaning of section 7114(a)(2)(A) of the Statute. The

court also noted that the parties had excluded

discrimination claims from their NGP. A3

The Ninth Circuit decision was written against a

background of conflicting administrative and judicial

precedent. Because the court’s decision can best be

understood in this context, a brief history of the

relevant precedent is provided prior to analyzing the

court’s opinion in the instant case.

2. Relevant Judicial and Administrative

Precedent “

Three circuit courts of appeals have considered the

question whether discussions between an agency

employer and a bargaining unit employee about the

employee’s complaint filed pursuant to alternative

statutory procedures concern a “grievance” as that term

is used in section 7114(a)(2)(A). Two of those circuits —

the United States Courts of Appeals for the District of

Columbia and Tenth Circuits — agree with the Authority,

the agency charged with administering the Statute, that

an employee’s complaint filed under alternative statutory

procedures is a “grievance.” However, the United States

Court of Appeals for the Ninth Circuit has created both

an inter-circuit and an intra-circuit conflict by holding that

discussions concerning discrimination complaints filed

under EEOC procedures do not concern a “grievance”

within the meaning of section 7114(a)(2)(A).

a. The Ninth Circuit’s Decision in JRS,

Fresno v. FLRA

The Authority first considered whether a discussion

regarding an EEO complaint was a “formal discussion”

within the meaning of section 7114(a)(2)(A) of the

Statute in Internal Revenue Service, Fresno Service

Center, Fresno, California, 7 FLRA 371 (1981) (Fresno

Service Center). There the Authority found that a

counseling meeting? held to resolve an individual

employee’s allegation of discrimination concerned a

“grievance” and was a “formal discussion.” Jd. at 374-

75.

On review, the Ninth Circuit reversed the Authority.

Internal Revenue Serv., Fresno Serv. Ctr. v. FLRA, 706

F.2d 1019 (9th Cir. 1983) (IRS, Fresno v. LRA). The

court held that the meeting was not a formal discussion

because: 1) the meeting was informal, noting the special

confidentiality concerns associated with the EEO

counseling session;* and 2) the meeting did not concern a

“grievance.” With respect to the second ground, the

court found that the EEOC procedure is “unrelated to

and separate from” the NGP, noting that the parties’

collective bargaining agreement excluded discrimination

complaints from the NGP. Jd. at 1024. In this regard,

the court limited the term “grievance” as used in section

7114(a)(2)(A) to a grievance filed under the parties’

NGP.

3Individuals who believe that they have been discriminated

against must first consult with a counselor in an effort to “informally

resolve the matter.” 29 C.F.R. 1614.105(a) (1999).

‘During this initial stage of the discrimination complaint process,

the EEO counselor is not permitted to reveal the identity of the

aggrieved person, absent authorization from the individual seeking

counseling. 29 C.F.R. 1614.105(g) (1999).

aE Relea died dine cherie ete doen en

b. The D.C. Circuit’s Decision in NTEU v.

FLRA

After IRS, Fresno v. FLRA, the Authority adopted the

reasoning of the Ninth Circuit and held that the term

“grievance” as used in section 7114(a)(2)(A) did not

include complaints filed pursuant to alternative statutory

procedures, such as proceedings before the MSPB and the

EEOC. Bureau of Gov't Fin. Operations, Headquarters,

15 FLRA 423, 426-30 (1985) (BGFO). The discussion at

issue in BGFO concerned an appeal before the MSPB.

The D.C. Circuit reversed the Authority. National

Treasury Employees Union v. FLRA, 774 F.2d 1181 (D.C.

Cir. 1985) (NTEU v. FLRA). Relying principally on the

broad definition of “grievance” in section 7103(a)(9) of the

Statute, the court expressly disagreed with the Ninth

Circuit and concluded that the term “grievance” as used

in section 7114(a)(2)(A) encompasses more than matters

that may be pursued under the NGP and includes

complaints filed under alternative statutory procedures.

Id. at 1185-86, 1188. The court also determined that a

broad construction of “grievance” was consistent with

section 7121, which relates to grievance procedures. Id. at

1186-88.

Citing the reasoning of the D.C. Circuit in NTEU v.

FLRA, the Authority subsequently returned to its view

in F'resno Service Center. See Ray Brook, 29 FLRA at

590. Accordingly, the Authority held that the term

“grievance,” as used in section 71 14(a)(2)(A), encompasses

alternative statutory procedures. Jd.

e. The Tenth Circuit’s Decision in VA, Denver

v. FLRA

The Authority’s position that a “grievance” within the

meaning of section 7114(a)(2)(A) includes alternative

statutory procedures was upheld by the Tenth Circuit in

Department of Veterans Affairs v. FLRA, 3 F.3d 1386

(10th Cir. 1993) (VA, Denver v. FLRA). The discussion at _

issue in VA, Denver v. FLRA concerned an MSPB appeal.

There the court cited with approval the D.C. Circuit’s

NTEU v. FLRA decision, id. at 1390, and attempted to

distinguish JRS, Fresno v. FLRA by asserting that IRS,

Fresno turned on the fact that the EEO proceeding was

at the counseling stage, id. at 1391.

d. The Ninth Circuit’s Decision in VA, Long

Beach v. FLRA

Following [RS, Fresno v. FLRA, but well before

deciding the instant case, the Ninth Circuit found that

an MSPB appeal was a grievance within the meaning of

section 7114(a)(2)(A). Department of Veterans Affairs

Med. Ctr. v. FLRA, 16 F.3d 1526, 1536 (9th Cir. 1994)

(VA, Long Beach v. FLRA). Like the D.C. Circuit in

NTEU v. FLRA, the court began its analysis with the

broad statutory definition of grievance. 16 F.3d at 1533.

By finding that “grievance” is not limited to complaints

processed through the NGP but also includes complaints

processed through alternative statutory procedures, the

VA, Long Beach v. FLRA court created an intra-circuit

conflict with and cast doubt on the validity of JRS, Fresno

v. FLRA. Although attempting to distinguish IRS, Fresno

v. FLRA, the court stated in VA, Long Beach v. FLRA that

“we note that the reasoning of the District of Columbia

circuit in [NTEU v. FLRA], rejecting the [JRS, Fresno v.

F'LRA\ analysis, is more persuasive.” 16 F.3d at 1534 n.4.

3. The Ninth Circuit’s Decision in the Instant

Case

After the Authority found that the agency violated

the Statute by not notifying the union of the meeting

to discuss the employee’s EEO complaint, Luke AFB

petitioned the Ninth Circuit for review. Finding the

case controlled by RS, Fresno v. FLRA, the court

granted the petition for review and denied the

Authority’s cross-application for enforcement. App.

Al-A8. The court held that an EEO complaint was

not a grievance because it was filed pursuant to the

EEOC’s procedures. The court also noted that the

parties had excluded discrimination complaints from

their NGP. The court did not address VA, Long Beach

v. FLRA or its tension with JRS, Fresno v. FLRA.

On March 14, 2000, the court denied the Authority’s

petition for rehearing and petition for rehearing en

banc. App. Bl.

REASONS FOR GRANTING THE PETITION

The Court should grant the petition for certiorari to

resolve the intra- and inter-circuit conflicts on the issue

of whether a union’s right to representation during an

agency’s formal discussion with an employee applies to

discussions regarding claims filed pursuant to

alternative statutory procedures. The lower courts

have disagreed on the question of the union’s right to

attend formal discussions that relate to these

procedures — an issue of exceptional importance to

unions, agencies, and employees. As the Department of

Justice on behalf of Luke AFB explained to the Ninth

Circuit regarding this case, union representation during

EEO sessions is a “recurring issue of ‘substantial public

importance’ that is of interest to all components of the

Federal Government.” Luke Air Force Base’s Request

for Publication, dated January 10, 2000, App. E2.

This case presents the Court with the opportunity

to resolve the current conflict and provide uniform

guidance to the federal employment community. By

deciding this question, the Court can clarify the

unions’ important representational right to attend

formal discussions as it relates to alternative

statutory procedures.

A. The Decision of the Court Below Conflicts

with That of Two Other Circuits and Another

Panel Within the Ninth Circuit

1. The Conflict Is Direct

The decision of the court of appeals is in direct conflict

with the D.C. Circuit’s decision in NTEU v. FLRA and

the Tenth Circuit’s decision in VA, Denver v. FLRA.

The decision below was based exclusively on the Ninth

Circuit’s IRS, Fresno v. FLRA precedent — a decision

with which the D.C. Circuit has expressly disagreed.

Specifically rejecting IRS, Fresno v. FLRA’s conclusion

that “the term ‘grievance’ . . . include[s] only disputes

governed by a negotiated grievance procedure,” NTEU

v. FLRA, 774 F.2d at 1188, the D.C. Circuit has held that

a meeting concerning a statutory appeal to the MSPB

concerned a grievance within the meaning of section

7114(a)(2)(A), regardless of availability of the NGP, id.

at 1185 n.5.

“[G]reatly persuaded by the reasoning of [NTEU v.

FLRA\],” the Tenth Circuit has also held that the term

“grievance” as used in section 7114(a)(2)(A)

encompasses complaints filed under alternative

statutory procedures as well as matters pursued

through an NGP. VA, Denver v. FLRA, 3 F.3d at 1390-

91. Adopting the reasoning of the D.C. Circuit, the

Tenth Circuit found that limiting the reach of

“grievance” to the NGP — as the court below did here

and in IRS, Fresno v. FLRA — “is too narrow a

reading of [section] 7114(a)(2)(A).” Jd. at 1391.

The conflict regarding the meaning of “grievance” in

section 7114(a)(2)(A) reflects a _ significant

disagreement over the role of unions in the federal

workplace. In IRS, Fresno v. FLRA, the Ninth Circuit

stated that a union’s function is limited to the negotiated

grievance mechanism and that the union has “no such

institutional role in the EEOC process.” 706 F.2d at

1025. The D.C. Circuit has rejected this finding, stating

that it views “the interest of unions under the [Statute]

as potentially far broader.” NTEU v. FLRA, 774 F.2d at

1188. See also VA, Denver v. FLRA, 3 F.3d at 1390

(section 7114(a)(2)(A) “recognizes that the resolution of

an individual employee complaint may have an impact

on the rights of other unit employees”).

The D.C. Circuit emphasized that regardless of the

forum in which an employee opts to bring his complaint,

a union has an interest in the fair treatment of unit

members and any allegation of unfair treatment

triggers that interest. See NTEU v. FLRA, 774 F.2d at

1188. Further, resolving individual complaints affects

other employees, whether that resolution takes place in

the NGP or an alternative statutory procedure. For

example, a remedy for one employee may result in

decreased opportunities for others. Jd. In addition,

determinations with respect to what constitutes an

unjust employment action in one case may affect the

rights and expectations of other employees in similar

circumstances. Jd. As the D.C. Circuit stated, these

effects are present whether the aggrieved employee

pursues the matter through the NGP or through an

alternative statutory procedure. Id.

Not only does the decision in this case conflict with

two other circuits, it is also inconsistent with other

Ninth Circuit precedent. VA, Long Beach v. FLRA —

where the Ninth Circuit held that an MSPB complaint is

a “grievance” — cannot be reconciled with Luke AFB v.

FLRA and IRS Fresno v. FLRA, which found that an

EEOC complaint is not a “grievance.”5 This

inconsistency resulted from the two panels taking a

different view of the meaning of grievance in section

7114(a)(2)(A). The court in VA, Long Beach v. FLRA

noted that the Statute defines “grievance” “extremely

broadly.” 16 F.3d at 1533. This broad definition does not

limit “grievance” to matters raised through the parties’

NGP, as the Ninth Circuit suggests in Luke AFB v.

FLRA and IRS, Fresno v. FLRA.

2. The Conflict Must Be Resolved

The conflicting decisions of the various circuits create

significant difficulties. First, there is a need for

uniformity in construing federal law that regulates

federal sector labor-management relations. Such

uniformity in the application of statutory rules and

procedures has long been recognized by this Court with

regard to the private sector. See Garner v. Teamsters

Local Union No. 776, 346 U.S. 485, 490 (1953).

Further, continuation of this conflict will necessarily

proliferate litigation and uncertainty within the federal

sector labor relations community, and thereby drain

resources of federal agency employers and the unions

that represent federal employees, as well as burden the

‘The circuit conflict cannot be reconciled by reasoning that Luke

AFB v. FLRA and IRS, Fresno v. FLRA involved discrimination com-

plaints under the auspices of the EEOC and those at issue in the other

cases involved MSPB appeals. First, although VA, Denver v. FLRA

and NTEU v. FLRA both involved MSPB appeals, the courts’ ratio-

nale in those cases was not limited to such appeals, but instead applied

to alternative statutory procedures in general. See VA, Denver v.

FLRA, 3 F'3d at 1390-91. Second, no court has suggested that there is

a principled difference, with respect to the meaning of the statutory

term “grievance,” between appeals to the MSPB and complaints

under EEOC procedures. As such, the fact that a particular case

involves either EEOC or MSPB procedures is not a basis for applying

the Statute’s formal discussion rights differently.

ll]

Authority and the courts. These difficulties are in large

measure due to the uncertain venue provisions of the

Statute. Under section 7123(a), a person aggrieved by a

final order of the Authority may “institute an action for

judicial review of the Authority’s order in the United

States court of appeals in the circuit in which the person

resides or transacts business or in the United States

Court of Appeals for the District of Columbia.” 5 U.S.C.

7123(a). Accordingly, in any case arising outside the

geographical jurisdiction of the D.C. Circuit, there will

be at least two available venues for resolution of a labor

dispute.

When, as here, an agency’s offices are located within

the geographical jurisdiction of the Ninth Circuit, both

the Ninth and D.C. Circuits are potential available

venues for judicial determinations. These agencies and

the exclusive representatives of employees in such

agencies will be unsure of their rights and obligations

regarding formal discussions involving alternative

statutory procedures because any decision of the

Authority will be inconsistent with the precedent of a

potential reviewing court.

B. The Court of Appeals Erroneously Determined

That EEO Complaints Are Not Grievances for

Purposes of Section 7114(a)(2)(A)

In the instant case, the panel relied on JRS, Fresno v.

FLRA and found that complaints brought pursuant to

EEOC procedures are not “grievances” within the

meaning of section 7114(a)(2)(A). App. A3. In JRS,

Fresno v. FLRA, the Ninth Circuit held that a

“grievance,” for purposes of section 7114(a)(2)(A), does

not encompass complaints brought pursuant to EEOC

procedures, because EEOC procedures are “unrelated to

and separate from the contractual grievance process.”

IRS, Fresno v. FLRA, 706 F.2d at 1024. As demonstrated

below, this excessively narrow interpretation of the

Statute’s definition of “grievance” is inconsistent with the

express terminology, legislative history, and purpose of

the provisions of the Statute under consideration.

1. The Express Language of the Statute

Section 7114(a)(2)(A) of the Statute broadly provides

for union attendance at meetings concerning “any

grievance.” To ascertain the scope of the term

“grievance” in section 7114(a)(2)(A), the first place to

look is the Statute’s express definition of “grievance.”

See Gustafson v. Alloyd Co., 513 U.S. 561, 570 (1995)

(“[I]dentical words used in different parts of the same

act are intended to have the same meaning.”) (internal

quotation marks omitted); In re Yochum, 89 F.3d 661,

666 (9th Cir. 1996) (“{I]n statutes that contain statutory

. definition sections, it is commonly understood that such

definitions establish meaning wherever the terms

appear in the same Act.”) (citation omitted).

The express language of section 7103(a)(9) provides

no basis for limiting the definition of “grievance,” as

the court below did here, so as to exclude complaints

brought pursuant to alternative statutory procedures.

To the contrary, the Statute defines “grievance” in the

most inclusive terms. Section 7103, the Statute’s

definition section, provides in relevant part that:

“grievance” means any complaint-

(A) by any employee concerning any matter relat-

ing to the employment of the employee[.]

5 U.S.C. 7103(a)(9)(A) (emphasis added). Accordingly,

the Statute’s broad definition of “grievance”

encompasses any employment-related complaint,

regardless of the forum in which the complaint may be

pursued. See AFGE v. FLRA, 865 F.2d at 1286 (“It is

understood that a grievance may arise either pursuant

to a statutory procedure or a contractually administered

process.”). Congress’s repeated use of the modifier “any”

underscores its intent that the definition be as inclusive

as possible. In this case, Ms. Cano’s complaint that she

was the victim of illegal discrimination by her employing

agency is undeniably a “complaint by [an] employee

concerning [a] matter relating to [her employment],” 2.e.,

a “grievance” under the Statute’s definition.

Section 7121, the Statute’s section providing for

NGPs, also provides no basis for limiting the definition

of “grievance” as the court below did. On the contrary,

section 7121 indicates specifically that a “grievance”

includes both those complaints filed through the NGP

and those filed through alternative statutory

procedures. Subsections 7121(d) and (e) provide that

“aggrieved employees” affected by illegal discrimination

within the jurisdiction of the EEOC, or subject to

conduct or performance-based actions within the

jurisdiction of the MSPB, may raise these matters

under either a statutory procedure or an NGP, but not

both. 5 U.S.C. 7121(d), (e). As the D.C. Circuit held

with regard to these subsections:

[Ijf the term “grievance” referred only to

disputes pursued through [NGPs],

§ 7121(d) and (e) would not be worded to

require an “aggrieved employee”

(emphasis supplied) to elect to pursue a

remedy under either a negotiated

procedure or a statutory procedure. An

“aggrieved employee” — 1.e., one with a

grievance — would by definition

necessarily pursue his grievance under a

negotiated procedure.

NTEU v. FLRA, 774 F.2d at 1187.

Section 7121(a)’s reference to subsections 7121(d) and

(e) in discussing the scope and exclusivity of NGPs also

indicates that a “grievance” includes complaints filed

under alternative statutory procedures. Section 7121(a)

provides that any collective bargaining agreement shall

include procedures for the “settlement of grievances.”

These procedures, however, are not entirely exclusive.

Section 7121(a) states in this regard that an NGP’s

procedures “shall be the exclusive administrative

procedures for resolving grievances which fall within

{the NGP’s] coverage,” “/eJxcept as provided in

subsections (d) [and] (e) . . . of this section” (emphasis

added). Accordingly, this ‘section recognizes that

discrimination complaints filed under alternative

Statutory procedures are in fact “grievances” and

provides that this class of grievances may be processed

through either a contractualor a statutory procedure.

See NTEU v. FLRA, 774 F.2d at 1187-88 (“[T]he

statutory procedures referred to in § 7121(d) and (e) are

also procedures for resolving grievances.”).

Finally, the court below erred when it found relevant

the fact that in this case EEO matters were excluded

from the scope of the parties’ NGP. A particular subject

matter may be a grievance for the purpose of a union’s

“formal discussion” right even though it cannot be

processed through the contractual grievance procedure.

The language of section 7121(a) fully supports this

analysis through the use of the phrase “grievances

which fall within [an NGP’s] coverage.” This wording

necessarily means that there may be “grievances” that

are outside the NGP’s coverage. Any other

interpretation would render the phrase meaningless.

See United States v. Nordic Village, Inc., 503 U.S. 30, 36

(1992) (“[A] statute must, if possible, be construed in

such fashion that every word has some operative

effect.”) (citations omitted). In this case, EEO matters

remain grievances for the purpose of section

7114(a)(2)(A) formal discussion rights — such matters

just cannot be processed through the NGP.

2. The Legislative History of the Statute

In addition to the Statute’s express terms, the

Statute’s legislative history also supports the

Authority’s construction of the Statute. Commenting

on what was to become the definition of “grievance,”

the House Report stated that “[i]Jt should be noted

that, although this subsection is virtually all-inclusive

in defining ‘grievance’ section 7121 excludes certain

grievances from being processed under a negotiated

grievance procedure, thereby limiting the net effect of

the term.” H.R. Rep. No. 95-1403, at 40 (1978). As the

D.C. Circuit found, “[t]he only plausible reading of the

sentence ...is that § 7121 ensures that some

grievances cannot be processed under [an NGP].”

NTEU v. FLRA, 774 F.2d at 1188. By recognizing

that some grievances are excluded from the NGP, the

passage makes clear that the term “grievance” should

not be limited to matters covered by an NGP.

3. The Purpose of the Statute’s Provisions

Finally, the lower court ignores an important

purpose behind the Statute’s formal discussion right.

As explained by the Tenth Circuit, the Statute, by

providing formal discussion rights for discrete

“srievances” and not just general personnel policies,

“recognizes that the resolution of an individual

employee complaint may have an impact on the rights

of other unit employees.” VA, Denver v. FLRA, 3 F.3d

at 1390. In contrast, here the court below took too

narrow a view of the union’s role in the workplace,

relegating unions to the role of mere grievance-

processors.

As this Court has recognized, unions have an

important role in eradicating employment

discrimination. See Emporium Capwell Co. v.

Western Addition Community Org., 420 U.S. 50, 69

(1974) (“[E]limination of discrimination and its

vestiges is an appropriate subject of bargaining .. . .”).

In finding that a union has no institutional interest in

the processing and resolution of an individual’s

discrimination complaint, the Ninth Circuit ignores

the effects that such matters have on the entire

bargaining unit. As noted by the NTEU v. FLRA

court, unions have an established interest in how

allegations of discrimination are dealt with and

resolved, regardless of the forum in which the

employee chooses to lodge the complaint. 774 F.2d at

1188.

In sum, the Statute provides a broad definition of

“grievance” that includes complaints processed

pursuant to alternative statutory procedures that may

or may not also be processed through NGPs. The

statutory definition controls the term’s use in section

7114(a)(2)(A). Therefore, contrary to the conclusion of

the court below, a meeting concerning a complaint

filed under an alternative statutory procedure, such as

the EEO complaint in this case, constitutes a formal

discussion within the scope of that section. Moreover,

union attendance at such meetings furthers the

purpose behind section 7114(a)(2)(A).

Two courts of appeals and one panel of the Ninth

Circuit have agreed with the Authority on this issue

and rejected the analysis that served as the basis of

the decision in the instant case. This Court should

grant the petition for certiorari and resolve the

conflict among the courts of appeals.

ae te

CONCLUSION

The petition for a writ of certiorari should be

granted.§

Respectfully submitted,

DAVID M. SMITH*

Solicitor

JAMES F. BLANDFORD

Attorney :

JUDITH A. HAGLEY

Attorney

* Counsel of Record

JUNE 2000

6The Solicitor General authorizes the filing of this petition.

APPENDIX A

OPINION OF THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT,

DECEMBER 30, 1999

x, oie

hg sete

Ae Ets

aE ed peta

A-1

FILED Dec. 30, 1999, Cathy A. Catterson, Clerk

U.S. Court of Appeals

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

LUKE AIR FORCE BASE, _)

Arizona ) Nos. 98-71173

) 98-71347

Petitioner-Cross )

Respondent, )

) MEMORANDUM!

vs. a

)

FEDERAL LABOR )

RELATIONS AUTHORITY, )

)

Respondent-Cross )

Petitioner, )

)

AMERICAN FEDERAL— )

OF GOVERNMENT )

EMPLOYEES, AFL-CIO )

(AFGE), Local 1547, )

Respondent-Intervenor. )

Petitions for Review of a

Decision of the Federal

Labor Relations Authority

Argued and Submitted

December 8, 1999 San

Francisco, California -

Before: WIGGINS, O’SCANNLAIN, and HAWKINS,

Circuit Judges

!This disposition is not appropriate for publication and may not

be cited to or by the courts of this circuit except as may be provided

by Ninth Circuit Rule 36-3.

A-2

American Federation of Government Employees, Local

1547, is the exclusive representative of a bargaining unit

at Luke Air Force Base (“Luke”). The collective

bargaining agreement between the union and Luke

excludes discrimination claims from the grievance

procedure provided in the agreement. Tillie Cano, a

member of the union’s bargaining unit, filed her claims

pursuant to Equal Employment Opportunity Commission

(“EEOC”) regulations rather than the grievance

procedure. For the mediation and the investigation

scheduled in connection with these complaints, Cano

designated Paul King, president of the union, as her

personal representative. On January 18, 1995, Cano,

King, and representatives from Luke and the Office of

Complaint Investigation met for the first time. King left

the meeting early. At the end of the first meeting, a

second meeting was scheduled for the next day; however,

no one from Luke’s management attempted to contact

King or the rest of the union regarding the second

meeting. At the January 19 meeting, Cano signed a

settlement agreement without King’s presence.

In May and October of 1995, the union filed unfair labor

practice charges against Luke before the Office of

Administrative Law Judges, part of the Federal Labor

Relations Authority (““FLRA”). The Chief Admin-

istrative Law Judge found that Luke failed to comply

with Section 7114 of the Federal Service Labor-

Management Relations Statute (“Labor Statute”) because

Luke did not give the union notice and an opportunity to

be represented at the January 19 meeting.“ In August

1998, the FLRA adopted the ALJ’s conclusion in a

“Section 7114(a) of the Labor Statute provides in relevant part:

(2) An exclusive representative of an appropriate unit in an

agency shall be given the opportunity to be represented at—

(A) any formal discussion between one or more representa-

tives of the agency and one or more employees in the unit or

their representatives concerning any grievance....

5 U.S.C. §7114 (1998).

A-3

decision and order. We have jurisdiction under 5 U.S.C. §

7123. We may set aside a decision issued by the FLRA

only if it is “arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with law.” Department of

Veterans Affairs Med. Ctr. v. FLRA, 16 F.3d 1526, 1529

(9th Cir. 1994). Because we conclude that the FLRA

acted arbitrarily and capriciously in deciding that Luke

violated Section 7114 of the Labor Statute, we

REVERSE.

In order for the union to possess a right to

representation at a meeting, the following elements of

Section 7114(a)(2)(A) must exist: There must be (l)a

discussion, (2) which is formal, (3) between the

representatives of the government employer and the unit

employee or her representatives (4) concerning a

grievance. See General Serv. Admin. v. American Fed’n

of Govt Employees, 48 F.L.R.A. 1348, 1354 (1994). Under

IRS, Fresno Serv. Ctr. v. FLRA, 706 F.2d 1019, 1024

(9th Cir. 1983), “grievances” within the meaning of

Section 7114(a)(2)(A) do not include Cano’s complaints

because they were brought pursuant to EEOC

procedures, which are “discrete and separate from the

grievance process to which 5 U.S.C. [§] . . . 7114 [is]

directed.” The fact that the collective bargaining

agreement explicitly excludes discrimination claims

from the grievance procedure also suggests that these

claims are not “grievances.” See id. Because the

January 19 meeting did not concern “grievances” within

the meaning of Section 7114, the meeting did not satisfy

the fourth element of Section 7114. The union therefore

had no right of representation at the meeting. As such,

Luke did not violate Section 7114 when it failed to give

the union notice of the January 19 meeting.

REVERSED.

APPENDIX B

THE UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT’S DENIAL OF THE

AUTHORITY’S PETITION FOR REHEARING

AND PETITION FOR REHEARING EN BANC,

MARCH 14, 2000

B-1

FILED Mar. 14, 2000 Cathy A. Catterson, Clerk

U.S. Court of Appeals

EMPLOYEES, AFL-CIO

(AFGE), Local 1547,

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

LUKE AIR FORCE BASE, _)

Arizona ) Nos. 98-71173;

) 98-71347

Petitioner-Cross )

Respondent, )

vs. ) ORDER

)

FEDERAL LABOR )

RELATIONS AUTHORITY, )

)

Respondent-Cross )

Petitioner, )

)

AMERICAN FEDERAL )

OF GOVERNMENT )

)

Respondent-Intervenor. )

Before: WIGGINS, O’SCANNLAIN, and HAWKINS,

Circuit Judges.

Petitioner’s motion for publication is DENIED.

The panel has unanimously voted to deny the petition for

rehearing and the petition for rehearing en banc. The full

court has been advised of the petition for rehearing en banc

and no active judge has requested a vote on whether to

rehear the matter en banc. Fed. R. App. P. 35.

The petition for rehearing and the petition for rehear-

ing en banc are DENIED.

APPENDIX C

DECISION AND ORDER OF THE FEDERAL

LABOR RELATIONS AUTHORITY IN LUKE AIR

FORCE BASE, ARIZONA AND AMERICAN

FEDERATION OF GOVERNMENT EMPLOYEES ;

LOCAL 1547, 54 FLRA 716 (1998)

C-1

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

LUKE AIR FORCE BASE, ARIZONA

* (Respondent)

and

AMERICAN FEDERATION OF |

GOVERNMENT EMPLOYEES |

LOCAL 1547

(Charging Party) |

DE-CA-50519 |

DECISION AND ORDER |

August 13, 1998 ;

Before the Authority: Phyllis N. Segal, Chair;

Donald S. Wasserman and

Dale Cabaniss, Members.

I. Statement of the Case

This unfair labor practice case is before the Authority

on exceptions to the attached decision of the

Administrative Law Judge filed by the Respondent.

The complaint alleges that the Respondent violated

section 7116(a)(1) and (8) of the Federal Service Labor-

Management Relations Statute (the Statute) by holding a

formal discussion with a bargaining unit employee on

January 19, 1995, without affording the Union adequate

notice and an opportunity to be represented. The Judge

found that the Respondent violated the Statute as alleged.

Upon consideration of the Judge’s decision and the

entire record, we adopt the Judge’s findings,

C-2

conclusions, and recommended Order, except as

modified herein. >

II. Background and Judge’s Decision

The facts, set forth in detail in the Judge’s decision,

are briefly summarized here. A unit employee filed two

formal Equal Employment Opportunity (EEO)

complaints alleging that she had been retaliated against

for having filed a previous EEO complaint against her

former supervisor. The Respondent’s commander

referred the two complaints to the Office of Complaint

Investigations (OCI) of the Department of Defense.! An

investigator fromm OCI then scheduled a conference with

the employee, who designated the Union president as

her personal representative.

The initial objective of this conference, as explained

by the OCI investigator in a January 5, 1995,

memorandum to the employee, was to mediate a

settlement between the employee and “a management

official designated complete authority to adjust the

complaint[s].” General Counsel Exhibit 2 at 2. Formal

investigation of the employee’s complaints would take

place only if mediation failed: “Should mediation not

lead to settlement, the formal investigation will begin

with [the employee’s] testimony immediately following

mediation.” Jd. at 1.

Both the employee and the Union president, as the

employee’s personal representative, met with the OCI

investigator on January 18, 1995. Also attending this

meeting were an attorney from the Air Force Judge

Advocate General’s office, who had been assigned to

represent the Respondent, and the empioyee’s former

1The Defense Department has consolidated the investigation of

formal EEO complaints from its components in the OCI, which is

part of the Department’s Civilian Personnel Management Service.

C-3

supervisor. The parties attempted for several hours

with the assistance of the OCI investigator to obtain a

mediated settlement of the employee’s complaints. They

failed to do so, and the Respondent’s representatives left

the meeting toward the end of the day. The OCI

investigator then set up her computer and began

transcribing the employee’s statement. The Union

president left before the employee completed her

statement and before there was any discussion of the

need for the OCI investigator and the employee to meet

again. The OCI investigator later told the employee that

they would meet again the following day, January 19.

The Union president was not notified of the January

19 meeting, and did not attend. The Respondent’s chief

EEO counselor was present at this meeting, and at an

early point either she or the attorney from the Judge

Advocate General’s office presented the employee with

a proposed settlement agreement. The agreement then

became the topic of the meeting. The chief EEO

counselor was “in and out of the room” relaying the

employee’s position to the Judge Advocate General

attorney and returning to present the Respondent’s

position to the employee. See Transcript at 125-26, 130-

31, 195-99, 233-35, 260-67. After some discussion in that

manner, the agreement was modified, and the employee

signed it.

The Judge found that the Respondent violated section

7116(a)(1) and (8) of the Statute by conducting a

meeting on January 19 with the employee that was a

discussion, which was formal, between one or more

representatives of the Respondent and a bargaining

\ unit employee concerning her formal EEO complaints.

He also found that the Respondent failed to provide the

Union notice and an opportunity to be represented at

the discussion, as required by section 7114(a)(2)(A). The

SEE eT ee ES

C-4

Judge found no merit to the Respondent’s argument

that, based on the decision of the U.S. Court of Appeals

for the Ninth Circuit in Internal Revenue Service,

Fresno Service Center v. FLRA, 706 F.2d 1019 (9th Cir.

1983) (IRS, Fresno), the employee’s EEO complaints

were not “grievances” under the Statute. He found that

IRS, Fresno addressed only informal EEO complaints,

not formal complaints such as those in this case.

Further, the Judge found no merit to the

Respondent’s argument that the employee’s right to

settle an EEO complaint outweighed the Union’s right

to be represented at the settlement. He found that

argument amounted to “weighing an employee’s right

to settle a grievance with the Union’s right to

represent the unit employees” and “would, in effect,

strike § 7114(a)(2)(A) from the Statute.” Judge’s

Decision at 11.

The Judge rejected the Respondent’s argument that

section 574 of the Alternative Dispute Resolution Act (5

U.S.C. § 571, et seq.) (ADR Act) precluded the

attendance of the Union at the settlement discussions of

the formal EEO complaints. He found that the OCI

investigator was not a neutral mediator, as envisioned

by the ADR Act, and that, in any event, “nothing in the

[ADR Act] forbids the Union from being present at the

settlement discussions or when settlement was

reached.” Jd. at 12. He similarly found that nothing in

the regulations or Equal Employment Opportunity

Commission (EEOC) management directives governing

OCI investigations forbade the Union from being

present at settlement discussions of formal EEO

complaints.”

2The Judge identified these regulations as 29 C.F.R. Part 1614

and the Federal Sector Complaints Processing Manual, EEO Man-

agement Directive 110 (EEO MD 110). See Judge’s Decision at 12.

- C5

Under these circumstances, the Judge concluded that the

Respondent violated section 7116(a)(1) and (8) of the Statute.

As a remedy, he recommended an order directing the

Respondent to give the Union advance notice and an

opportunity to be represented at “formal discussions with

bargaining unit employees concerning mediation or

investigation of formal EEO complaints.” Jd. at 13. He also

recommended that the Respondent post a notice to all

employees.

III. Positions of the Parties

A. The Respondent

The Respondent acknowledges that, “Under Authority

law, the terms ‘meeting’ and ‘discussion’, are synonymous.”

Exceptions at 5. It contends, however, that the January 18

and 19 meeting between the employee and the OCI

investigator constituted a “two day informal mediation

session” rather than a formal discussion. Id. at 4.

In the Respondent’s view, this “mediation session”

was informal for several reasons. First, the Respondent

asserts that “only the employee’s first level supervisor

attended].]” Id. at 5. Second, Respondent asserts that

the attorney from the Judge Advocate General's office,

whom the Respondent does acknowledge ‘as its

representative, was present at the January 18 meeting

but was “not in the employee’s supervisory chain.” Jd.

In this regard, the Respondent asserts that on January

18 the parties “were together only a portion of the time,

with the mediator [the OCI investigator] spending a

large portion of the time talking with each side

individually in caucuses.” Id. Third, the Respondent

asserts that the meeting took place in a room across the

hall from the office of the Respondent’s chief EEO

counselor—“a neutral location outside of the employee’s

work area.” Id. Fourth, the Respondent asserts that the

C-6

“mediation process” lasted seven and a half hours over a

two day period. Id.

Fifth, the Respondent asserts that the meeting was

called by the OCI investigator “as part of her handling of

the case.” Jd. Sixth, the Respondent asserts that the

“mediation” had no formal agenda and no notes were taken.

Id. Seventh, the Respondent asserts that the “mediation”

was conducted by mutual consent and was confidential. Jd.

The Respondent again invokes, as it did before the

Judge, the decision of the Ninth Circuit in IRS, Fresno to

argue that meetings may be found informal when the

“regulatory framework” of the, EEOC characterizes them

that way. Exceptions at 6. The Respondent claims that the

Authority reached this same result in Social Security

Administration and Social Security Administration, Field

Operations, New York Region, 16 FLRA 1021 (1984) (SSA).

The Respondent excepts to the Judge’s determination

that the OCI investigator and the Respondent’s chief

EEO counselor were representatives of management.

In its view, the evidence shows that OCI investigators

are employees of the Department of Defense and not

agents of the installations (such as the Respondent)

where they conduct their investigations. The

Respondent asserts that the chief EEO counselor is

forbidden by the Federal Sector Complaints Processing

Manual, EEO Management Directive 110 (EEO MD

110) from serving as an agency representative and is

instead “neutral by law.”? Exceptions at 14. According

3EEO MD 110, Chapter 1. Paragraph IV. provides:

EEO counselors, EEO officers, and EEO program managers

have vital roles in the resolution of discrimination complaints

and to operate effectively they must have the confidence of

both the agency and the employees. It is inconsistent with

their neutral roles for EEO counselors, EEO officers, and

EEO program managers to serve as representatives for

7 = — » -

C-7

to the Respondent, its only representative was the

Judge Advocate General attorney who signed the

settlement agreement, but who was “not in the

employee’s supervisory chain.” Id. at 5.

The Respondent contends that the employee’s EEO

complaints were not “grievances” within the meaning of

section 7114(a)(2)(A) of the Statute. It further asserts that

“(t]he EEO complaint process is specifically excluded from

the parties’ collective bargaining agreement.” Exceptions

at 9. According to the Respondent, the Union had no right

to be present at the “mediation” in this case because that

mediation affected only the employee herself, not the

bargaining unit as a whole. Id. at 9.

Further, the Respondent contends that EEOC

regulations make no provision for the presence of an

exclusive representative during the processing and

settlement of EEO complaints. It asserts that the D.C.

Circuit has held that the rights of a complainant

outweigh the rights of an exclusive representative

where a conflict exists between the two,’ and that the

Authority has also recognized “the supremacy of the

EEO complainant’s position.” Jd. at 10. According to

agencies or complainants. Therefore, EEO counselors, EEO

officers, and EEO managers cannot serve as representatives

for complainants or for agencies in connection with the pro-

cessing of discrimination complaints. See generally, 29 C.F-R.

1614.605(c) (disqualification of representatives for conflict of

duties).

4The Respondent cites National Treasury Employees Union v.

FLRA, 774 F2d 1181 (D.C. Cir. 1985) (NTEU). The court in NTEU

reversed the Authority's decision that the term “grievance” under

section 7114(a)(2)(A) excluded statutory appeals. However, in dic-

tum upon which the Respondent relies here, the court noted that “a

direct conflict between the rights of an exclusive representative

under section 7114(a)(2)A) and the rights of an employee victim of

discrimination should also presumably be resolved in favor of the lat-

ter.” Id. at 1189, n.12 (emphasis in the original).

C-8

the Respondent, the Authority is entitled to no

“deference in interpreting the law involving the

processing of individual EEO complaints[,]” inasmuch as

all authority for doing so rests with the EEOC. Id.

Finally the Respondent contends that mediation

procedures under the ADR Act are intended to be

confidential. According to the Respondent, “[wJhen a

third party such as a union which has no business at an

[sic] mediation . . . is present, confidentiality of the

process will be violated.” Jd. at 11. The Respondent

argues that “there is no requirement to disclose

confidential information such as an EEO settlement

agreement to a third party without the consent of the

complainant,” and maintains that the Authority so held

in Federal Aviation Administration, New York

TRACON, Westbury, New York, 51 FLRA 115 (1995)

(TRACON).®

B. The General Counsel

The General Counsel principally emphasizes that this

case concerns a formal rather than an informal EEO

complaint, and contends that important distinctions—

relating chiefly to the confidentiality of the

proceedings—exist between the two types of

complaints. The General Counsel contends that the

Judge correctly distinguished the Ninth Circuit’s

decision in JRS, Fresno, which involved an informal

EE®-complaint, from this case, which involved a formal

complaint. The General Counsel adds that, similarly,

EEOC’s own regulations establish different rules

concerning the settlement of “EEO matters during the

precomplaint stage as compared to those matters

advanced to the formal stage.” Opposition at 5.

5The Authority found in TRACON, 51 FLRA at 123, that disclo-

sure of an EEO settlement agreement requested by the union under

section 7114(b)(4) of the Statute would violate the Privacy Act.

C-9

The General Counsel also maintains that the Union’s

right to be present at the settlement of the employee’s

EEO complaints exists independently of whether the

ultimate settlement agreement had any effect on other

unit employees, and contends that “the record clearly

reflects that the settlement discussions which preceded

[the agreement] involved topics with potential impact

on other employees.” Jd. at 8.

The General Counsel argues that both the OCI

investigator and the Respondent’s chief EEO counselor,

as well as the Judge Advocate General attorney, were

agents of the Respondent. According to the General

Counsel, the Respondent had, in effect, contracted with

OCI for the investigation of EEO complaints filed by the

Respondent’s employees. The General Counsel asserts

that “the Authority has found that even a contractor

functions as a ‘representative of the agency’ when that

contractor conducts the agency’s business.” Jd. at 9,

quoting from Defense Logistics Agency, Defense Depot

Tracy, Tracy, California, 39 FLRA 999, 1013 (1991).

The General Counsel maintains that, like the OCI

investigator and the Judge Advocate General attorney,

the Respondent’s chief EEO counselor was also

“conducting the Respondent’s business by her actions

during the meeting[.]” Opposition at 10.

IV. Analysis and Conclusions

The January 18 and January 19 sessions were arranged

by the OCI investigator to mediate and, if necessary,

investigate the employee’s EEO complaints. The Union

president was present at the J anuary 18

mediation/investigation session, attending as the

employee's personal representative. See J udge’s Decision

at 4. The Agency did not provide the Union notice and an

opportunity to be represented at the January 19

eS a ee he ae er ae ee

C-10

mediation/investigation session. The complaint concerns

only the January 19 session. For the following reasons,

we conclude that the January 19 mediation/investigation

session of the EEO complaints was a “formal discussion”

within the meaning of section 7114(a)(2)(A) of the Statute

and, therefore, that the Respondent violated section

7116(a)(1) and (8) of the Statute by failing to provide the

Union notice and an opportunity to be represented at that

mediation/investigation session.®

A. The January 19 Mediation/Investigation Session

of the EEO Complaints Constituted a “Formal

Discussion” Within the Meaning of Section 7114

(a)(2)(A) of the Statute

In order for a union to have the right to

representation under section 7114(a)(2)(A), all the

elements of that section must exist. There must be: (1)

6Neither the Respondent nor the General Counsel presented any

arguments that our analysis should be affected by the fact that the

events spanned two days and the alleged violation occurred’on the

secone day. Further, there are no arguments that the fact that the -

Union president attended the first day affects this case. Similarly,

the complaint does not allege, and we do not decide, whether the

Respondent violated the Statute by failing to provide the Union

notice of the January 18 mediation/investigation session.

We note that section 7114(a)(2)(A) of the Statute places the bur-

den on an agency to provide adequate prior notification so that the

union may have the opportunity to designate its representatives for

the formal discussion. See, e.g., Department of the Air Force, Sacra-

mento Air Logistics Center, McClellan Air Force Base, California,

29 FLRA 594, 604-05 (1987). As such, the statutory burden of

informing a union about a formal discussion does not shift to a com-

plainant who has chosen a union official as a personal representative

under EEO regulations. Thus, the Union president’s attendance as

the employee’s personal representative at the mediation/investiga-

tion session on January 18 did not relieve the Agency of its

obligation to inform the Union in advance about the formal discus-

sion on January 19. Jd. at 606.

C-11

a discussion; (2) which is formal; (3) between one or

more representatives of the agency and one or more

unit employees or their representatives; (4) concerning

any grievance or any personnel policy or practice or

other general condition of employment. General

Services Administration, Region 9 and American

Federation of Government Employees, Council 236, 48

FLRA 1348, 1354 (1994) (GSA J).

1. The January 19 Mediation/Investigation

Session of the EEO Complaints Was a

Discussion

It is undisputed that the Respondent engaged ina

“discussion” with the employee about her EEO

complaints, within the meaning of section 7114(a)(2)(A),

and, thus, we will not address this requirement.

However, the Respondent argues that this discussion

was not “formal” and concerned neither a “grievance”

within the meaning of the Statute nor a matter affecting

other unit employees. The Respondent additionally

argues that neither the OCI investigator nor its chief

EEO counselor were “representatives of the agency”

for purposes of section 7114(a)(2)(A).

2. The January 19 Mediation/Investigation Session

of the EEO Complaints Was Formal

In GSA J, the Authority held that:

In determining whether a discussion is formal within the

meaning of section 7114(a)(2)(A), [the Authority has]

advised that the totality of the circumstances presented

must be examined, but that a number of factors are

relevant: (1) the status of the individual who held the

discussions; (2) whether any other management

representatives attended; (3) the site of the discussions;

(4) how the meetings for the discussions were called; (5)

spree wget PE pin eS -wps mes z

PPS 7 LS og FT SS

C-12

how long the discussions lasted; (6) whether a formal

agenda was established for the discussions; and (7) the

manner in which the discussions were conducted.

GSA I, 48 FLRA at 1355. These factors are illustrative,

and other factors may be identified and applied as

appropriate in a particular case. See FE. Warren Air

Force Base, Cheyenne, Wyoming, 52 FLRA 149, 157

(1996) (Warren). Therefore, in determining formality,

. the Authority considers the totality of the facts and

circumstances. Id.

The OCI investigator presided at, and the chief EEO

counselor facilitated, the January 19 mediation/

investigation session of the EEO complaints. The

Respondent disputes the Judge’s finding that the OCI

investigator and the chief EEO counselor were agents of

management on January 19. It asserts that the chief

EEO counselor is a “neutral.” However, the Respondent

does not deny that management was represented at all

times by an attorney from the Judge Advocate General’s

office. The Judge Advocate General attorney

participated in the initial settlement discussions of

January 18 as well as on January 19. In addition, the ©

Judge Advocate General attorney ultimately drafted and

signed the agreement with the employee on January 19.

See Exceptions at 4.

In view of the concession by the Respondent that

management was represented at all times by an

attorney from the Judge Advocate General’s office, we,

therefore, find it unnecessary to address, and do not

adopt, the Judge’s findings that the OCI investigator

and the chief EEO counselor are also “representatives”

of the Agency within the meaning of section

7114(a)(2)(A) of the Statute. Similarly, we do not

address the Respondent’s contention that the chief EEO

counselor is a “neutral.” In addition, we do not address

i arerereeaianrneeneenniiniiiail

C-13

the Respondent’s contention that the OCI investigator

is not a representative of the Agency because of her

organizational location.

The Respondent argues that since the Judge

Advocate General attorney was not the employee’s first

level supervisor, the mediation session was not attended

by an Agency representative of the sort that would

indicate a “formal” meeting. Although there is no doubt

that she was not the employee’s first level supervisor, it

is clear that the Judge Advocate General attorney

represented a high level of management. The Judge

identified the attorney as “the Chief of Civil Law” in the

Judge Advocate General’s office. J udge’s Decision at 2.

The attorney identified herself at the hearing as “chief

of adverse actions.” Transcript at 120.

In an attempt to support its contention of

“informality,” the Respondent describes the back and

forth nature of the mediation/investigation session. The

record does not show that the Judge Advocate General

attorney was physically present at the January 19

mediation/investigation session with the employee, and

the Judge made no finding as to that point. The

attorney testified that she was never in the room with

the employee on that day. See Transcript at 125. The

employee testified that she remembered that the

attorney brought the proposed settlement agreement

into the room but “didn’t Say a word to anybody” and

then left. Jd. at 76.

Although the evidence is inconclusive that the

employee and the Judge Advocate General attorney

ever spoke directly to each other on January 19, they

communicated extensively through the chief EEO

counselor. The record shows that at that

mediation/investigation session, the chief EEO

counselor was “in and out of the room” relaying the

ne ent

C-14

employee’s position regarding a proposed settlement

agreement to the Judge Advocate General attorney and

returning to present the Respondent’s position to the

employee. See Transcript at 125-26, 130-31, 195-99, 233-

35, 260-67. Moreover, this process ultimately produced a

settlement agreement signed by the Judge Advocate

General attorney.

Even if they were communicating exclusively through

the chief EEO counselor, it is clear that both the

employee and the Judge Advocate General attorney

were engaged in responding to each other’s settlement

positions, and that they were no less engaged than if

they had been speaking face-to-face—as they had been

speaking the previous day.’ A normal mediation

technique is to have people in different rooms with

someone going back and forth conducting the

negotiation. The Union’s interest and right to be

represented at face-to-face negotiations of a grievance,

see, ¢.g., GSA I, 48 FLRA at 1355-56, applies as well, in

our view, to a negotiation conducted through a mediator.

Under these circumstances, the Judge Advocate

General attorney was effectively present at the January

19 mediation/investigation session. Thus, the nature of

the communication during the mediation/investigation

session on January 19 does not undermine the overall

formality. See, e.g., Veterans Administration Medical

Center, Long Beach California, 41 FLRA 1370, 1379-80

(1991), (VAMC, Long Beach), enforced, 16 F.3d 1526 (9th

7We find no merit to the Respondent’s contention that the Union’s

right to be present at an OCI-conducted mediation/investigation

session “where [the Union] is not the personal representative of the

complainant” would interfere with management’s internal delibera-

tive process. Exceptions at 14. The Union seeks to be present only

at the discussions between the management.representative and the

employee and not at any intra-management meetings where negoti-

ation strategy or settlement authority is discussed.

C-15

Cir. 1994) (an interview conducted by telephone was

“formal” within the meaning of section 7114(a)(2)(A)).

The fact that the January 19 mediation/investigation

session of the EEO complaints took place outside of the

employee’s work area indicates that it was formal. The

Judge found that it took place “a mile or more away from

[the employee’s] work site.” Judge’s Decision at 10. The

Respondent does not dispute this finding, but describes

the meeting site as “a neutral location outside of the

employee’s work area.” Exceptions at 5. Meetings held

outside an employee’s immediate work area are

associated with formality, while those held in the work

area are not. See, e.g., Marine Corps Logistics Base,

Barstow, California, 45 FLRA 1332, 1335-36 (1992)

(Marine Corps Logistics Base) (shop floor discussion not

formal); U.S. Department of Defense, Defense Logistics

Agency, Defense Depot Tracy, Tracy, California, 37

FLRA 952 (1990) (meeting held in employee lunchroom

formal); Department of Health and Human Services,

Social Security Administration and Social Security

Administration Field Operations, Region II, 29 FLRA

1205, 1216 (1987) (meeting at supervisor’s desk near

employee's seat assignment not formal). In view of the

fact that the mediation/investigation session was held on

the Respondent’s premises, it is not clear whether it is

properly characterized as having been at a “neutral

location,” as the Respondent maintains. In any event,

even if this location were viewed as “neutral,” it does not

outweigh the fact that it was an Agency location outside

the employee’s immediate work area.

The length of the January 19 mediation/investigation

session of the EEO complaints similarly indicates that it

was formal. The Judge found that the January 19

mediation/investigation session culminating in the

settlement agreement lasted three hours. See J udge’s

C-16

Decision at 10. As the Respondent describes it, “(tJhe

mediation process lasted over a two day period covering

a period of seven and a half hours.” Exceptions at 5.

The Respondent presents no basis, and none is apparent

given all the other evidence in the case, for describing a

three hour mediation/investigation session — much less

a seven and one half hour session extending over two

days — as impromptu or spontaneous.

The record shows that an agenda was established for

the January 18 and January 19 mediation/investigation

sessions of the EEO complaints. The Judge found that

“there clearly was a pre-established agenda for the

meeting.” Judge’s Decision at 10. The Respondent

asserts that “there was no formal agenda for the

informal mediation session.” Exceptions at 3, 5. The

Authority has relied on a variety of evidence to conclude

that a particular meeting had or did not have an

“agenda.” See, e.g., Warren, 52 FLRA at 159 (message

received by one military command from another found

to be agenda for formal discussion); Marine Corps

Logistics Base, 45 FLRA at 1336 (no agenda where

supervisor “thought through his plans for the meeting,”

but did so only five or ten minutes in advance); Veterans

Administration, Washington, D.C. and VA Medical

Center, Brockton Division, Brockton, Massachusetts, 37

FLRA 747, 754 (1990) (agenda found where supervisor

distributed old and new shift schedules and asked

employees to choose new shifts).

Although the Judge does not say precisely what he

found to be the “agenda” in this case, the record shows

that the OCI investigator sent the employee a

memorandum some two weeks prior to the

mediation/investigation session. This memorandum

referred to the issues in the employee’s complaints,

explained the general plan of the meeting, and laid out

C-17

certain ground rules. See General Counsel Exhibit 2.

The investigator sent a copy of this memorandum to the

Respondent’s chief EEO counselor. See Respondent

Exhibit 12. To the extent that the OCI investigator's

memorandum shows that the mediation/investigation

session to discuss the employee’s EEO complaints was

planned in advance and had a set of clearly-defined

objectives and procedures that were communicated to

all the participants, we find that this memorandum was

an “agenda” for the mediation/investigation session.

Although the employee’s attendance may not have

been mandatory in the sense that she could face

discipline for refusing to meet with the OCI

investigator, the evidence shows that she had

reasonable grounds to conclude that her complaints

could be adversely affected if she did not attend. The

Judge found that the employee “considered the meeting

to be mandatory.” Judge’s Decision at 4, 10.8 The

Respondent contends that “(t]he meeting was conducted

by mutual consent[,]” presumably meaning that it was

voluntary. Exceptions at 5. The OCI investigator

testified that the employee’s attendance was “not

mandatory” and that she had never heard of a

complainant being disciplined for refusing to speak with

an OCI investigator. Transcript at 168-69. However,

the OCI investigator’s memorandum to the employee,

discussed above, states that “[flailure to cooperate in

the investigation . . . will not stop the investigation. It

will, however, result in recommendations based on

available information and may be the basis for an

®The Judge does not explain how he arrived at this finding. How-

ever, when asked at the hearing whether she ever considered not

attending the mediation/investigation session with the OCI investi-

gator, the employee testified on direct examination: “No, I thought

this was the thing to do . . . [i]t was just like I was supposed to be

there.” Transcript at 83.

C-18

adverse inference concerning the position of the

nonresponding party.” General Counsel Exhibit 2 at 2.

Based on this, we find that attendance by the employee

at the January 19 mediation/investigation session of the

EEO complaints was, in effect, mandatory.

Nevertheless, even if attendance were not mandatory,

the other indicia of formality support our conclusion that

the session on January 19 was a formal discussion. See,

Warren, 52 FLRA at 159.

The Judge found that “the meeting resulted in a

signed settlement agreement([,] reflecting the results of

the meeting.” Judge’s Decision at 10. The Respondent

asserts merely that “no notes [were] taken.” Exceptions

at 5. The record does not indicate that anyone took notes

or minutes during the actual settlement on January 19,

but it is unclear whether notes or minutes would have

been expected. In her memorandum to the employee,

the OCI investigator stated that “[tlhe entire mediation

conference is confidential, except for information which I

would be required to report by law[,]” and “[a]side from

minimal notes and the actual [settlement] agreement, if

any, no report or testimony unique to the mediation

conference will be included in the discrimination

complaint file.” General Counsel Exhibit 2 at 2. To the

extent that the initial focus of the January 19

mediation/investigation session had shifted from

mediation to investigation, however, the record shows

that the OCI investigator was in the process of

transcribing the employee’s statement into her computer

when the Respondent presented its settlement offer.

On balance, and considering the totality of the facts and

circumstances, we are persuaded that the evidence

supports the Judge’s,conclusion that the January 19

mediation/investigation session of the EEO complaints

was a “formal discussion” within the meaning of section

C-19

7114(a)(2)(A). See, e.g., GSA I, 48 FLRA at 1355-56

(settlement negotiations of an appeal to the Merit Systems

Protection Board between an agency and the employee

and her private attorney constituted formal discussions

within the meaning of section 7114(a)(2)(A) of the Statute).

The Respondent’s reliance on the Authority’s decision

in SSA, 16 FLRA at 1033-34, is misplaced. In SSA, the

Authority adopted a Judge’s conclusion that meetings to

settle an EEO complaint were not formal. In that case,

the Judge viewed as dispositive that the presiding official

was a facilitator, attendance was not mandatory, and the

manner of the discussion was not confrontational. As

explained above, for the purpose of determining whether

the discussion was formal, we view the January 19th

session as, in effect, mandatory. In any event, to the

extent that SSA implies that a facilitated discussion in

general, or a mediated negotiation in particular, can never

be “formal” under section 7114(a)(2)(A) of the Statute, we

reject that conclusion. In our view, a union’s statutory

right to notice and an opportunity to be present during a

discussion is not diminished when the discussion between

employees and agency representatives is conducted in a

nonconfrontational manner through a neutral third party.

SSA will no longer be followed to the extent it implies

that a discussion conducted in this way will never be

found “formal” within the meaning of the Statute. We will

continue to look at the totality of the circumstances in

determining whether a discussion is formal.

We also reject the Respondent’s reliance on the Ninth

Circuit’s decision in JRS, Fresno to support its position

that meetings may be found informal when the

“regulatory framework” of the EEOC characterizes them

that way. Exceptions at 6. The Authority’s decision in

Marine Corps Logistics Base, Barstow, California, 52

FLRA 1039 (1997) (Barstow) issued after the Judge’s

C-20

decision in this case. In Barstow, the Authority concluded

that a meeting, at which management presented an

employee with a proposed settlement agreement of a

formal EEO complaint, was a formal discussion of a

grievance that the union should have been permitted to

attend. In reaching this conclusion, the Authority pointed

to its earlier decision in U.S. Department of Justice,

Bureau of Prisons, Federal Correctional Institution (Ray

Brook, New York), 29 FLRA 584, 589-90 (1987), affirmed

sub nom. American Federation of Government

Employees Local 3882 v. FLRA, 865 F.2d 1283 (D.C. Cir.

1989) (Ray Brook). In Ray Brook, the Authority decided

to follow the reasoning of the D.C. Circuit in NTEU over

that of the Ninth Circuit in JRS, Fresno and held that a

grievance within the meaning of section 7114(a)(2)(A) can

encompass a statutory appeal. For the reasons stated in

Barstow, we reject the Respondent’s reliance on JRS,

Fresno.

3. The January 19 Mediation/Investigation Session

of the EEO Complaints Was Between a Rep-

resentative of the Agency and a Unit Employee

-As noted, the Respondent concedes that the attorney

from the Judge Advocate General’s Office was its

representative and had settlement authority for purposes

of this case. Exceptions at 5. The Respondent asserts that

the Judge Advocate General attorney was not a

supervisor of the employee. However, nothing in section

7 7114(a)(2)(A) of the Statute requires that a

| “representative” be a supervisor. Cf; VAMC, Long Beach,

California, 41 FLRA at 1379 (undisputed that

1 respondent’s attorney who conducted telephone interview

: was respondent’s representative); and Department of

Health and Human Services, Social Security

| Administration, Baltimore, Maryland, 39 FLRA 298,

| 311-12 (1991) (finding respondent “responsible for the acts

C-21

and conduct of its agent, regardless of the organizational

location of its agent”). Thus, we conclude that the

January 19 mediation/investigation session of the EEO

complaints was between a “representative” of the Agency

and a unit employee within the meaning of section

7114(a)(2)(A) of the Statute.

4. The January 19 Mediation/Investigation Session

of the EEO Complaints Concerned a Grievance

The Judge correctly concluded that the formal EEO

complaints filed by the employee constituted a “grievance”

within the meaning of section 7114(a\2)(A). See Barstow,

52 FLRA at 1045-46. We reject the Respondent’s assertion

that section 7114(a)(2)(A) cannot recognize as a “grievance”

any matter that the parties have excluded from their own

negotiated grievance procedure. The Statutory definition of

a grievance is not dependent on the Scope of a negotiated

grievance procedure. Agencies and unions remain free to

exclude from their grievance procedures any matters they

choose. This does not preclude matters they exclude from

their grievance procedures from being “grievances” under

the Statute if they otherwise meet the elements of section

7103(a\(9).9

—_

*Section 7103(a)(9) of the Statute provides:

(9) ‘grievance’ means any complaint—

(A) by any employee concerning any matter relating to the

employment of the employee;

(B) by any labor organization concerning any matter relat-

ing to the employment of any employee; or

concerning—

(i) the effect or interpretation, or a claim of breach, of a

collective bargaining agreement; or

(ii) any claimed violation, misinterpretation, or misapplica-

tion of any law, rule, or regulation affecting conditions of

employment{.]

= FF NS ere ee _

C-22

The Respondent’s argument that the Union had no

right to be present at the “mediation” in this case

because that mediation affected only the employee

herself, not the bargaining unit as a whole, is also

misplaced. Exceptions at 9. Section 7114(a)(2)(A) does

not require that a “grievance” manifest some effect on

other employees in the bargaining unit before it may

become the subject of a formal discussion. See, e.g.,

Barstow, 52 FLRA at 1045-46; Department of the Navy,

Charleston Naval Shipyard, Charleston, South Carolina,

32 FLRA 222, 230 (1988) (“[Section 7114(a)(2)(A)

requires that a formal discussion be connected with a

grievance of a bargaining unit employee or with any

personnel policy or practices or other general conditions

of employment affecting bargaining unit employees.”).

The Authority’s determinations under section

7114(a)(2)(A) are “guided by that section’s intent and

purpose — to provide the union with an opportunity to

safeguard its interests and the interests of employees in

the bargaining unit — viewed in the context of a union’s

full range of responsibilities under the Statute.” Ray

Brook, 29 FLRA at 589.

Nevertheless, we conclude that the grievance did

affect the bargaining unit as a whole. This conclusion is

supported by testimony from the employee and from the

Respondent’s own witnesses about the employee’s

concern that she not be placed in a job for which other

employees may have been competing. See, e.g.,

Transcript at 205-06, 232, 237. The Respondent

concedes that the employee herself insisted on

modifying the proposed settlement agreement to

provide that it would have no “impact” on other

bargaining unit positions. See Exceptions at 12. The

Respondent consented to this modification and created a

new position for the employee. Its present argument

C-23

that the\settlement discussions had no effect on other

unit employees because the discussions resulted in an

agreement that other employees would not be affected

is without merit. For example, the allocation of a

position to the employee would necessarily deprive

other employees from bidding on that position.

B. The Presence of a Union Representative at the

January 19 Mediation/Investigation Session of the

EEO Complaints Would Not Conflict With EEOC

Regulations or the ADR Act

1. EEOC regulations

- As the General Counsel points out, the Respondent

does not contend that 29 C.F.R. Part 1614 and EEO MD

110 actually prohibit the presence of a union

representative at the formal discussion of an employee’s

EEO complaint. Rather, the Respondent asserts only

that those regulations do not provide for the union’s

presence: “[nJowhere in 29 C.F.R. Part 1614 does that

regulation allow for the exclusive representative’s

presence, unless the exclusive representative is the

complainant’s designated representative.” Exceptions at

9. The fact that 29 C.F.R. Part 1614 does not mention the

right of a union to be present at a formal discussion of an

EEO complaint does not mean that the union’s presence is

forbidden or that that regulation necessarily conflicts with

the protections of the Statute. Cf. Barstow, 52 FLRA at

1046. Indeed, the Respondent points to no such conflict in

this case. The Respondent does assert that the Authority

is not “entitled to deference in interpreting the law

involving the processing of individual EEO complaints.”

Exceptions at 10. However, in the absence of any

apparent inconsistency between section 7114(a)(2)(A) of

the Statute and “the law involving the processing of

individual EEO complaints[,]” nothing in this case

requires the Authority to make such an interpretation.

C-24

id. Further, because we find no conflict between the

EEOC regulations and the Statute, it is not necessary to

determine whether those regulations would trump the

Statute in general, or section 7114(a)(2)(A) in particular.

The Respondent also relies on dictum by the D.C.

Circuit in NTEU, 774 F.2d at 1189, that Congress has

explicitly decided that a conflict between the rights of

identifiable victims of discrimination and the interests of

the bargaining unit must be resolved in favor of the

former. Again, however, the Respondent identifies no

conflict between the rights of the employee in this case

and those of the Union or the rest of the bargaining

unit. In particular, it does not dispute the Judge’s

finding that the employee not only never objected to the

Union president’s presence at the settlement

discussions but, “({ojn the contrary, she had wanted him

to be present.” Judge’s Decision at 5, n.5.1°

2. Administrative Dispute Resolution Act

Section 574 of the ADR Act, titled “Confidentiality,”

deals with circumstances under which certain

communications made during dispute resolution

proceedings may not be disclosed by the parties or by

the neutral outside those proceedings. An exclusive

representative that is a “party” to the proceedings

would presumably be bound by the nondisclosure

provisions of 5 U.S.C. § 574. The focus of section 574 of

the ADR Act is on the protection of the confidentiality

of alternate dispute resolution proceedings and not on

who may attend such proceedings. Thus, the mere

presence of a union representative at a dispute

10The Respondent's reliance on U.S. Government Printing Office,

23 FLRA 35 (1986) (GPO) is misplaced. GPO did not involve section

7114(a)(2)(A) of the Statute as here, but, instead, it involved section

7116(a)(1) and (5).

C-25

resolution proceeding where all the elements of section

7114(a)(2)(A) were met, in and of itself, would not

conflict with those provisions of the ADR Act. Further,

because we find no conflict between the ADR Act and

the Statute, we need not determine whether the ADR

Act, if applicable, would trump the Statute in general,

or section 7114(a)(2)(A) in particular.

The Respondent’s reliance on such cases as TRACON,

51 FLRA 115, in which the Authority found that the

Privacy Act precluded the disclosure of an EEO

settlement agreement, is misplaced. In contrast to those

cases, the Union here has not requested any information

and the Respondent has not been charged with refusing to

provide any. Further, the fact that section 7114(b)(4) may

not require an agency to disclose an EEO settlement

agreement to a union does not mean that a union has no

right under section 7114(a)(2)(A) to attend the formal

discussion of an EEO complaint, whether that discussion

results in a settlement agreement or not.

Accordingly, we find that the Respondent has failed to

demonstrate that either EEOC regulations or the ADR

Act conflicts with section 7114(a)(2)(A) of the Statute or

otherwise precludes the Union’s right to be represented

at the discussion in this case.

C. Summary

In sum, we find that the January 19 mediation/

investigation session of the EEO complaints was a

discussion, which was formal, between a representative of

the Respondent and a bargaining unit employee concerning

a grievance, within the meaning of section 7114(a(2)(A) of

the Statute. In addition, we find that the Respondent has

failed to establish that the presence of a Union

representative at the mediation/investigation session would

conflict with EEOC regulations or the ADR Act.

\ C-26

Therefore, by holding a formal discussion with a bargaining

unit employee without affording the Union notice and an

opportunity to be represented at the discussion, as required

by section 7114(a)(2)(A), the Respondent violated section

7116(aX1) and (8) of the Statute.

V. Order

Pursuant to section 2423.41(c) of the Authority’s

Regulations and Section 7118 of the Federal Service

Labor-Management Relations Statute,!! Luke Air

Force Base, Arizona shall:

1. Cease and desist from:

(a) Failing or refusing to provide the American

Federation of Government Employees, Local 1547

advance notice and the opportunity to be represented at

formal discussions with bargaining unit employees con-

cerning any grievance or any personnel policy or

practices or other general conditions of employment,

including meetings to mediate settlement negotiations

pertaining to formal EEO complaints.

(b) In any like or related manner, interfering with,

restraining, or coercing employees in the exercise of

rights assured to them by the Federal Service Labor-

Management Relations Statute.

" 11We have modified section 1(a) of the Judge’s recommended

Order, and the recommended Notice, to be consistent with the

Judge’s recommendation that the remedial order require the Respon-

dent to provide the Union advance notice and an-opportunity to be

represented at “formal discussions with bargaining unit employees

concerning mediation or investigation of formal EEO complaints.” Jd.

at 13. Further, we have modified section 2(a) of the recommended

Order, and the recommended Notice, so that the Respondent can des-

ignate the person who would provide the Union advance notice and

the opportunity to be represented at formal discussions.

C-27

2. Take the following affirmative actions in order to

effectuate the purposes and policies of the Federal

Service Labor-Management Relations Statute:

(a) Provide the American Federation of Govern-

ment Employees, Local 1547, advance notice and the

opportunity to be represented at formal discussions

with bargaining unit employees concerning mediation of

formal EEO complaints.

(b) Post at Luke Air Force Base, Arizona copies of

the attached Notice to All Employees on forms to be

furnished by the Federal Labor Relations Authority.

Upon receipt of the forms, they shall be signed by the

Commander, Luke Air Force Base, and they shall be

posted and maintained for 60 consecutive days there-

after, in conspicuous places, including all places where

notices to employees are customarily posted.

Reasonable steps shall be taken to ensure that such

Notices are not altered, defaced, or covered.

ity’s Regulations, notify the Regional Director of the

Denver Region, 1244 Speer Boulevard, Suite 100,

Denver Colorado 80204-3581, in writing, within 30 days

from the date of this order, as to what steps have been

taken to comply.

C-28

NOTICE TO ALL EMPLOYEES

POSTED BY ORDER OF THE

FEDERAL LABOR RELATIONS AUTHORITY

The Federal Labor Relations Authority has found that

the Department of the Air Force, Luke Air Force Base,

Arizona has violated the Federal Service Labor-

Management Relations Statute and has ordered us to

post and abide by this notice.

We hereby notify bargaining unit employees that:

WE WILL NOT fail or refuse to provide the employees’

exclusive representative, the American Federation of

Government Employees, Local 1547 (the Union),

advance notice and the opportunity to be represented at

formal discussions with bargaining unit employees

concerning any grievance or any personnel policy or

practices or other general conditions of employment,

including meetings to mediate settlement negotiations

pertaining to formal EEO complaints filed by bargaining

unit employees. s

WE WILL NOT, in any like or related manner, interfere

with, restrain, or coerce employees in the exercise of the

rights assured them by the Federal Service Labor-

Management Relations Statute.

WE WILL, provide the Union advanced notice and the

opportunity to be represented at formal discussions

with bargaining unit employees concerning mediation of

formal EEO complaints.

; (Activity)

Date: By:

(Signature) (Title)

C-29

This Notice must remain posted for 60 consecutive days

from the date of posting, and must not be altered,

defaced, or covered by any other material.

If employees have any questions concerning this Notice

or compliance with its provision, they may

communicate directly with the Regional Director,

Denver Region, 1244 Speer Boulevard, Suite 100,

Denver, Colorado, 80204-3581, and whose telephone

number is: (303) 844-5224.

APPENDIX D

RELEVANT PORTIONS OF THE FEDERAL

SERVICE LABOR-MANAGEMENT RELATIONS

STATUTE, 5 U.S.C. 7101-7135

(1994 & Supp. III 1997) AND OF THE EQUAL

EMPLOYMENT OPPORTUNITY COMMISSION

REGULATIONS, 29 C.F.R. pt. 1614 (1999)

D-1

§ 7103. Definitions; application

(a) For the purpose of this chapter -

x**x* KKK Kk *

(9) “grievance” means any complaint

(A) by any employee concerning any matter

relating to the employment of the employee;

(B) by any labor organization concerning any

matter relating to the employment of any employee;

agency concerning—

(i) the effect or interpretation, or a claim

of breach, of a collective bargaining agreement; or

(ii) any claimed violation, misinterpreta-

tion, or misapplication of any law, rule, or regulation

affecting conditions of employment;

* eK KK K *

§ 7105. Powers and duties of the Authority

(a)

*e eK K K *

(2) The Authority shall, to the extent provided in

this chapter and in accordance with regulations pre-

_ scribed by the Authority—

* ee KK K *

(G) conduct hearings and resolve complaints

of unfair labor practices under section 7118 of this

title;

ese e£ KK K

D-2

§ 7114. Representation rights and duties

(a)

** *k Kk Ke KX *

(2) An exclusive representative of an appropriate

unit in an agency shall be given the opportunity to

be represented at—

(A) any formal discussion between one or

more representatives of the agency and one or

more employees in the unit or their representa-

tives concerning any grievance or any personnel

policy or practices or other general condition of

employment;

eee te & &

§ 7116. Unfair labor practices

(a) For the purpose of this chapter, it shall be an

unfair labor practice for an agency—

(1) to interfere with, restrain, or coerce any

employee in the exercise by the employee of any

right under this chapter;

x** ke KK K *

(8) to otherwise fail or refuse to comply with any

provision of this chapter.

kek KK K KK

ee Se ee a Cane —

§ 7121. Grievance procedures

(a)(1) Except as provided in paragraph (2) of this

subsection, any collective bargaining agreement

shall provide procedures for the settlement of griev-

D-3

ances, including questions of arbitrability. Except as

provided in subsections (d), (e) and (g) of this section,

the procedures shall be the exclusive administrative

procedures for resolving grievances which fall within

its coverage.

(2) Any collective bargaining agreement may

exclude any matter from the application of the griev-

ance procedures which are provided for in the

agreement.

(b)(1) Any negotiated grievance procedure referred

to in subsection (a) of this section shall—

(A) be fair and simple,

(B) provide for expeditious processing, and

(i) assure an exclusive representative the right,

in its own behalf or on behalf of any employee in the

unit represented by the exclusive representative, to

present and process grievances;

(ii) assure such an employee the right to present

a grievance on the employee’s own behalf, and assure

the exclusive representative the right to be present

during the grievance proceeding; and

(iii) provide that any grievance not satisfactorily

- settled under the negotiated grievance procedure

shall be subject to binding arbitration which may be

invoked by either the exclusive representative or

the agency.

(2)(A) The provisions of a negotiated grievance pro-

cedure providing for binding arbitration in

accordance with paragraph (1)(c)(iii) shall, if or to the

extent that an alleged prohibited personnel practice

is involved, allow the arbitrator to order—

(i) a stay of any personnel action in a manner sim-

ilar to the manner described in section 1221(c) with

respect to the Merit Systems Protection Board; and

(ii) the taking, by an agency, of any disciplinary _

\ D-4

action identified under section 1215(a)(3) that is oth-

erwise within the authority of such agency to take.

(B) Any employee who is the subject of any discipli-

nary action ordered under subparagraph (A)(ii) may

appeal such action to the same extent and in the

same manner as if the agency had taken the discipli-

nary action absent arbitration.

not apply with respect to any grievance concerning -

(1) any claimed violation of subchapter III of

chapter 73 of this title (relating to prohibited politi-

cal activities); _

(2) retirement, life insurance, or health insurance;

(3) a suspension or removal under section 7532 of

this title; :

(4) any examination, certification, or appointment;

(5) the classification of any position which does not

result in the reduction in grade or pay of an

employee.

(d) An aggrieved employee affected by a prohibited

personnel practice under section 2302(b)(1) -f this

title which also falls under the coverage of the nego-

tiated grievance procedure may raise the matter

under a statutory procedure or the negotiated proce-

dure, but not both. An employee shall be deemed to

have exercised his option under this subsection to

raise the ma‘ter under either a statutory procedure

or the negotiated procedure at such time as the

employee timely initiates an action under the applic-

able statutory procedure or timely files a grievance

in writing, in accordance with the provis* ns of the

parties’ negotiated procedure, whiche er event

occurs first. Selection of the negotiated procedure in

no manner prejudices the right of an aggrieved

employee to request the Merit Systems Protection

A |

D-5

Board to review the final decision pursuant to sec-

tion 7702 of this title in the case of any personnel

action that could have been appealed to the Board,

or, where applicable, to request the Equal

Employment Opportunity Commission to review a

final decision in any other matter involving a com-

plaint of discrimination of the type prohibited by any

law administered by the Equal Employment

Opportunity Commission.

(e)(1) Matters covered under sections 4303 and 7512

of this title which also fall within the coverage of the

negotiated grievance procedure may, in the discre-

tion of the aggrieved employee, be raised either

under the appellate procedures of section 7701 of

this title or under the negotiated grievance proce-

dure, but not both. Similar matters which arise

under other personnel systems applicable to

employees covered by this chapter may, in the dis-

cretion of the aggrieved employee, be raised either

under the appellate procedures, if any, applicable to

those matters, or under the negotiated grievance

procedure, but not both. An employee shall be

deemed to have exercised his option under this sub-

section to raise a matter either under the applicable

appellate procedures or under the negotiated griev-

ance procedure at such time as the employee timely

files a notice of appeal under the applicable appellate

procedures or timely files a grievance in writing in

accordance with the provisions of the parties’ nego-

tiated grievance procedure, whichever event occurs

first.

(2) In matters covered under sections 4303 and

7512 of this title which have been raised under the

negotiated grievance procedure in accordance with

this section, an arbitrator shall be governed by sec-

tion 7701(¢)(1) of this title, as applicable.

D-6

§ 7123. Judicial review; enforcement

(a) Any person aggrieved by any final order of the

Authority other than an order under—

(1) section 7122 of this title (involving an award by

an arbitrator), unless the order involves an unfair

labor practice under section 7118 of this title, or

(2) section 7112 of this title (involving an appro-

priate unit determination),

may, during the 60-day period beginning on the

date on which the order was issued, institute an

action for judicial review of the Authority’s order

in the United States court of appeals in the circuit

in which the person resides or transacts business

or in the United States Court of Appeals for the

District of Columbia.

(b) The Authority may petition any appropriate

United States court of appeals for the enforcement

of any order of the Authority and for appropriate

temporary relief or restraining order.

(a) of this section for judicial review or under sub-

section (b) of this section for enforcement, the

Authority shall file in the court the record in the

proceedings, as provided in section 2112 of title 28.

Upon the filing of the petition, the court shall cause

notice thereof to be served to the parties involved,

and thereupon shall have jurisdiction of the pro-

ceeding and of the question determined therein and

may grant any temporary relief (including a tempo-

rary restraining order) it considers just and

proper, and may make and enter a decree affirming

and enforcing, modifying and enforcing as so modi-

fied, or setting aside in whole or in part the order

of the Authority. The filing of a petition under sub-

section (a) or (b) of this section shall not operate as

D-7

a stay of the Authority’s order unless the court

Specifically orders the stay. Review of the

Authority’s order shall be on the record in accor-

dance with section-706 of this title. No objection

that has not been urged before the Authority, or its

designee, shall be considered by the court, unless

the failure or neglect to urge the objection is

excused because of extraordinary circumstances.

The findings of the Authority with respect to ques-

tions of fact, if supported by substantial evidence

on the record considered as a whole, shall be con-

clusive. If any person applies to the court for leave

to adduce additional evidence and shows to the sat-

isfaction of the court that-the additional evidence is

material and that there were reasonable grovnds

for the failure to adduce the evidence in the hear-

ing before the Authority, or its designee, the court

may order the additional evidence to be taken

before the Authority, or its designee, and to be

made a part of the record. The Authority may mod-

ify its findings as to the facts, or make new findings

by reason of additional evidence so taken and filed.

The Authority shall file its modified or new find-

ings, which, with respect to questions of fact, if

Supported by substantial evidence on the record

considered as a whole, shall be conclusive. The

Authority shall file its recommendations, if any, for

the modification or setting aside of its original

order. Upon the filing of the record with the court,

the jurisdiction of the court shall be exclusive and

its judgment and decree shall be final, except that

the judgment and decree shall be subject to review

by the Supreme Court of the United States upon

writ of certiorari or certification as provided in sec-

tion 1254 of title 28. .

D-8

TITLE 29—LABOR

CHAPTER XIV—EQUAL EMPLOYMENT OPPORTU-

NITY COMMISSION

PART 1614—FEDERAL SECTOR EQUAL EMPLOY-

MENT OPPORTUNITY—Table of Contents

Subpart A—Agency Program To Promote Equal

Employment Opportunity

Sec. 1614.105 Pre-complaint processing.

(a) Aggrieved persons who believe they have been

discriminated against on the basis of race, color, reli-

gion, sex, national origin, age or handicap must

consult a Counselor prior to filing a complaint in

order to try to informally resolve the matter.

(1) An aggrieved person must initiate contact with

a Counselor within 45 days of the date of the matter

alleged to be discriminatory or, in the case of person-

nel action, within 45 days of the effective date of the

action.

(2) The agency or the Commission shall extend the

45-day time limit in paragraph (a) (1) of this section

when the individual shows that he or she was not

notified of the time limits and was not otherwise

aware of them, that he or she did not know and rea-

sonably should not have been known that the

discriminatory matter or personnel action occurred,

that despite due diligence he or she was prevented

by circumstances beyond his or her control from con-

tacting the counselor within the time limits, or for

other reasons considered sufficient by the agency or

the Commission.

* * *€* * KK *

(g) The Counselor shall not attempt in any way to

restrain the aggrieved person from filing a com-

D-9

plaint. The Counselor shall not reveal the identity of

an aggrieved person who consulted the Counselor,

except when authorized to do so by the aggrieved

person, or until the agency has received a discrimi-

nation complaint under this part from that person

involving that same matter.

APPENDIX E

LUKE AIR FORCE BASE’S REQUEST FOR

PUBLICATION, JANUARY 10, 2000

E-1

U.S. Department of Justice

Civil Division, Appellate Staff

601 “D” Street, N.W., Rm: 9146

Washington, D.C. 20530-0001

January 10, 2000

Ms. Cathy Catterson

Clerk, United States Court of Appeals

for the Ninth Circuit

95 Seventh Street

San Francisco, CA 94103-1526

Re: Luke Air Force Base v. Federal Labor

Relations Authority, Nos. 98-71173 &

98-71347 (December 30, 1999)

Dear Ms. Catterson:

Pursuant to 9th Cir. R. 36-4, petitioner Luke Air

Force Base writes to request publication of the

unpublished dispositien of the above-captioned case.

This decision meets this Court’s “Criteria for

Publication” in 9th Cir. Rule 36-2 in the following

respects. Although this Court recognized that its

earlier decision in JRS Fresno Service Center v. FLRA,

706 F.2d 1019 (9th Cir. 1983), applied to this case, the

FLRA had attempted to distinguish Fresno by limiting

Fresno’s application only to informal EEO

precomplaints. This decision “clarifies” (Rule 36-2(a))

that the analysis of this Circuit’s decision in IRS Fresno

is applicable to formal EEO complaints as well as

informal EEO complaints. Publication would also be

E-2

beneficial to the public as well because the FLRA’s

website states that union representation is permitted at

EEO mediation sessions. See http://www.flra.gov at

http://www.flra.gov.ge/ge_eeol.html:FLRA General

Counsel’s Guidance on EEO Matters, Part III—A

Union’s Right to be Represented at Meetings Involving

EEO Matters. A copy of the relevant pages is attached.

At least as to this Circuit, this is not the case. Union

representation at government EEO mediation sessions

is a recurring issue of “substantial public importance”

that is of interest to all components of the Federal

Government. See 9th Cir. Rule 36-2(d). Finally,

publication is also appropriate pursuant to 9th Cir. Rule

36-2(e) because this Court’s decision reverses the

FLRA’s published opinion in Luke Air Force Base and

American Federation of Government Employees, 54

FLRA No. 75 (1998).

Under the circumstances, we respectfully request

redesignation of the unpublished disposition as an Opinion.

We enclose copies of this letter for distribution to the

panel (Judges Wiggins, O’Scannlain, and Hawkins).

Thank you very much for your attention to this matter.

Sincerely, on

Sandra Wien Simon

Counsel for Petitioner Luke Air Force Base

Enclosure

CERTIFICATE OF SERVICE

I certify that on the 10th day of January, 2000 I

caused the foregoing letter to be served by first-class

mail, postage ae snag upon the following counsel:

E-3

David M. Smith

William R. Tobey

James F. Blandford

Federal Labor Relations Authority

607 14th Street, N.W.

Washington, D.C. 20424-0001

Kevin M. Grile

American Federation of Government Employees

AFL-CIO

449 North Clark Street, Room 300

Chicago, Illinois 60610

Mark D. Roth

Charles A. Hobbie

American Federation of Government Employees

AFL-CIO

80 “F’”’ Street, N.W.

Washington, D.C. 20001

SANDRA WIEN SIMON

Attorney

E-4

Involving the union in the settlement process may

alleviate any need to bargain over changes that result

from an EEO settlement agreement. In essence, this is

a form of predecisional involvement where the union

may present its interests as an institution when the

settlement involves a matter over which there would

otherwise be a duty to bargain.

(2) The agency keeps the union informed of settlement

progress and attempts to satisfy the union’s institutional

interests in the settlement agreement in the same

manner as management interests are satisfied.

Another strategy to avoid disputes over changes in

conditions of employment required by settlement of an

EEO dispute or alleged violations of a contract by terms

in an EEO settlement is for an agency to provide the

union with an opportunity to review any proposed

settlement before it is finalized. Under this strategy, the

union would be afforded the same opportunity that

other entities (e.g. other management components) are

afforded which have an interest in the settlement.

Allowing the union the opportunity to review proposed

settlements and explain its institutional interests prior

to finalization could result in avoiding the need to

negotiate over any changes in bargainable matters as a

result of the settlement or could allow the settlement

agreement to be modified so that there is no bargaining

or contract violation.

(3) The agency gives notice to the union and bargains

prior to implementation of any settlement, and where

necessary, provides in the settlement that

implementation is dependent upon fulfilling the agency’s

statutory bargaining obligation to the union.

A third strategy to avoid unfair labor practices is for an

E-5

agency to give a union notice of any changes called for

by a settlement agreement and fulfill the bargaining

obligation prior to implementation of those changes.

Agencies may choose to incorporate notice in the

settlement agreement that the settlement will be

implemented in accordance with law, which includes

bargaining under the Statute.

(4) Clarify the role of a union official representing an

employee.

Sometimes an employee is represented by a union

official as his/her personal representative during the

processing of an EEO claim. In these situations, the

union official may be serving as a personal

representative and may also be serving as a

representative of the union in his/her institutional

capacity as a result of a contract right or the right of a

union to be represented at a formal discussion. Parties

should clarify the role of the union official and whether

that official can bind the union with respect to any

statutory obligations that may arise from a settlement

agreement.

PART III

A UNION’S RIGHT TO BE REPRESENTED AT

MEETINGS INVOLVING EEO MATTERS

Q. #1: When does a union have a right to be

Tepresented at a meeting between an agency

representative and an employee concerning an

EEO dispute?

A union has a right to be represented at a formal

discussion within the meaning of section 7114(a)(2)(A) of

the Statute, even if the matter discussed concerns an

E-6

EEO complaint being processed as part of an EEO

proceeding.

Q. #2: Is a mediation session of a formal EEO

complaint a formal discussion?

The Authority has held that a mediation/investigation

session to resolve formal EEO complaints may be a

statutory formal discussion where an exclusive

representative has the right to be represented and

actively participate. The Authority analyzed the case

using the same decisional analysis that it uses for all

formal discussion allegations, holding that “a union’s

statutory right to notice and an opportunity to be

present during a discussion is not diminished when the

discussion between employees and agency

representatives is conducted in a nonconfrontational

manner through a neutral third party.” The Authority

also reaffirmed its position that a grievance within the

meaning of section 7114(a)(2)(A) can encompass a

statutory appeal, such as a formal EEO complaint.

Q. #3: When processing an EEO complaint who

qualifies as a “representative of the agency” for

formal discussion purposes?

I am of the view that an agency should not be permitted

to avoid its labor relations obligations simply by

contracting out EEO case processing actions which

involve bargaining unit employees. Thus, outside

investigators and mediators in EEO proceedings, in my

view, can be representatives of an agency for section

7114(a)(2)(A) formal discussion purposes. Further, in

my view, EEO Directors and counselors who are not in

a bargaining unit can be considered to be an agency’s

representative for formal discussion purposes.

However, it is unclear whether EEO counselors that

E-7

perform the counselor function as a collateral duty and

are bargaining unit employees can ever be a

representative of an agency for formal discussion

purposes. I have advised Regional Directors to submit

this issue for casehandling advice if an investigation of

an unfair labor practice charge establishes that all the

other elements of a formal discussion have been

established. _

Q. #4: Can a meeting concerning an informal EEO

complaint ever constitute a formal discussion

where the union has a right to be represented?

An informal EEO complaint, unlike a formal EEO

complaint, does not constitute a grievance for section

7114(a)(2)(A) formal discussion purposes. It is unclear,

however, if a meeting between a representative of an

agency and an employee that is formal in nature and

that concerns a personal policy or practice or general

condition of employment can be a formal discussion

under the Statute if the discussion takes place as part of

the processing an informal EEO complaint. I have

advised the Regional Directors to submit this issue for

casehandling advice should it arise.

Q. #5: How can agencies and unions avoid disputes

over whether a union has a right to be represented

at meetings concerning EEO disputes?

In my view, the most effective means to avoid disputes

over representation at formal discussions involving the

mediation and/or processing of EEO complaints is for

the agency and the union to work together in

establishing their ADR program and EEO case

processing procedures. Parties could avoid most

disagreements and misunderstandings about the

application of these statutory rights by jointly

E-8

establishing an ADR program and EEO processes that

satisfy the institutional interests of the agency and the

union, as well as respecting an individual’s right to file,

and have processed, an EEO compiaint.

Q. #6: Can the statutory right to representation at

an investigatory examination apply to processing

an EEO dispute?

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.