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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2000
- **Citation:** 531 U.S. 819

## Text

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)

IV

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

V

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) ......

VI

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

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

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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

a

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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

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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.

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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

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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
(C) by any employee, labor organization, or agency
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.

a

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.

(c) Pursuant to Section 2423.41(e) of the Author-
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;
or

(C) by any employee, labor organization, or
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.

Pd

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

(C) include procedures that—

(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.
(c) The preceding subsections of this section shall
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;
or

(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.

(c) Upon the filing of a petition under subsection
(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. .

\

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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-

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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

os
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

ey

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?

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386018_0817%3A1. Public record. Not legal advice.