U.S. Office of Personnel Management - Ensuring the Federal Government has an effective civilian workforce

Air Force, 436th Airlift Wing, Dover AFB and American Federation of Government Employees, WA-CA-00262, June 28, 2001, 57 FLRA No. 65.

The Authority, relying on its decision in Luke AFB (54 FLRA No. 75), and notwithstanding the 9th Circuit's having reversed that decision in Luke AFB v. FLRA, 208 F.3d 221 (9th Cir. 1999), cert. denied, 121 S. Ct. 60 (2000)), held that the agency committed a formal discussion ULP when it failed to notify the union of the mediation of a formal EEO complaint. "[W]e . . . do not acquiesce in the 9th Circuit's view of the scope of the term 'grievance.'" (In this case, the negotiated grievance procedure excluded EEO complaints, and the union wasn't representing the employee in the statutory procedure.) Chairman Cabaniss dissented on two grounds: (1) she agreed with the 9th Circuit's view, and (2) the presence of a union representative at the mediation session, where the union is not acting as the representative of the EEO complainant, violates EEOC regulations.

A bargaining unit employee challenged a suspension he had received by filing a formal EEO complaint. (The negotiated grievance procedure (NGP) excluded grievances concerning EEO complaints.) Pursuant to EEOC regulations, he requested mediation of his complaint. A private firm having a contract with the Air Force supplied a mediator, and the mediation session was scheduled at a local hotel. At the request of the mediator, the complainant and an agency attorney with authority to resolve the complaint signed an agreement concerning the confidentiality of the mediation. The mediation session, which was attended by the mediator, the complainant, and the attorney, lasted approximately six hours, of which only four 15-minute meetings were joint meetings: the rest of the time was taken up by private caucuses.

A ULP complaint was issued and the ALJ, relying on Luke AFB, 54 FLRA No. 75 [54 FLRA 716 (1988)], also involving the mediation of an EEO complaint, found that the agency committed a formal discussion ULP when it failed to afford the union notice and an opportunity to be represented at the mediation session.

The Authority, Chairman Cabaniss dissenting, rejected the agency's numerous exceptions to the ALJ's recommendations.

In finding, in agreement with the ALJ, that the mediation session was a "formal discussion" within the meaning of 5 USC § 7114(a)(2)(A), the Authority rejected the agency's contention that a mediation session, by its very nature, cannot be a formal discussion. As for the EEOC's view, published in its Federal Register notice, that an "activity conducted in connection with an agency ADR program during the EEO process would not be a formal discussion," FLRA said that such comments didn't warrant Chevron-style deference because they did not have the force of law.

Chevron only grants an agency deference when it is offering a permissible "construction of the statute which it administers." 467 U.S. at 837. The passage quoted from the Federal Register reflects that the EEOC has interpreted the Federal Service Labor-Management Relations statute--which is administered by the Authority, not the EEOC.

Considering, among other things, that the mediation session was scheduled more than a week in advance, was held away from the work site, followed a traditional mediation format, and was attended by the complainant and an agency attorney, who had signed a confidentiality agreement in advance of the meeting, the Authority concluded that the mediation session satisfied FLRA's formality criteria.

In also finding that the agency attorney at the mediation session was a "representative of the agency," it rejected the agency's argument that the attorney wasn't the complainant's supervisor and that attorneys representing a client do not become representatives of the agency.

As the Authority noted in Luke, "nothing in section 7114(a)(2)(A) of the Statute requires that a 'representative' be a supervisor." And, consistent with the Authority's longstanding precedent, attorneys who are representing clients can be representatives of the agency for the purposes of § 7114(a)(2)(A). See VAMC, Long Beach, Cal., 41 FLRA 1370, 1379 (1991), aff'd16 F.3d 1526 (9th Cir. 1994).

Regarding the express language of the statute, FLRA noted that § 7103(a)(9) defined "grievance" as "any complaint--(A) by any employee concerning any matter relating to the employment of the employee[.]" (Emphasis by FLRA.)

By its plain terms, the Statute's broad definition of  "grievance" encompasses any employment-related complaint, regardless of the forum in which the complaint may be pursued. Congress's repeated use of the modifier "any" underscores its intent that the definition be as inclusive as possible.

After quoting from the D.C. Circuit's support of this view in NTEU v. FLRA, 774 F.2d 1181, 1187 (1985), FLRA wrapped up its express language argument as follows:

Finally, the "grievances" referred to in § 7114 must be broader than the grievances that are processed through the NGP pursuant to § 7121. Union presence is already assured throughout the NGP, pursuant to § 7114(b)(1)(C)(i) and (ii). If § 7114(a)(1)(A)'s "grievance" was limited to grievances processed through the NGP, then the formal discussion right set out in § 7114 would merely duplicate the rights provided in § 7121(b)(1)(C). Such a reading would render that portion of § 7114(a)(2)(A) superfluous.

FLRA also rejected the agency's contention that a passage in the legislative history stating that section 7121 limited the net effect of the all-inclusive definition of grievance in section 7103(a)(9) by excluding certain grievances from being processed under the NGP supported the agency's view that EEO complaints aren't grievances for formal discussion purposes.

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. Second, to the extent the passage supports a narrowed "effect" on the term "grievance," it does so with respect only to the NGP in §7121, not regarding the formal discussion right provided for by § 7114.

FLRA criticized what it characterized as the agency's and 9th Circuit's "narrow" view of the union's role in the workplace, "relegating unions to the role of mere grievance-processors."  It noted, among other things, that the processing of an individual EEO complaint can affect the entire bargaining unit, which the union represents.

Nor did the fact that the NGP excluded EEO complaints from its coverage affect FLRA's view:

As the Authority has previously held, "[t]he statutory definition of a grievance is not dependent on the scope of a negotiated grievance procedure." Luke, 54 FLRA at 730. 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.

It rejected, in this connection, the agency's claim that the union, in agreeing to exclude EEO complaints from the NGP, waived the union's interest in such matters. "Given the availability of the federally subsidized EEO statutory procedure, the Union might have agreed to exclude such matters from the NGP in order to avoid the expenditure of resources required to process an EEO grievance to arbitration." Moreover, the union's willingness to exclude EEO grievances from the NGP might be based on its reliance on its right to attend formal discussions concerning EEO complaints.

FLRA also rejected the agency's claim that the union isn't a "party" to the dispute under the ADR Act and therefore not entitled to attend mediation sessions.

Finally, FLRA declined to address what it characterized as "hypothetical problems" not present in this case that were raised by the agency: e.g., refusal by the union to agree to confidentiality; union presence "chilling" candid discussions; and ADR discussions that might implicate private information protected from disclosure by another statute. "Such issues," said FLRA, "are more appropriately addressed in an actual case when squarely presented."

Chairman Cabaniss, who agreed with the 9th Circuit that the discussion at issue here didn't involve a "grievance" within the meaning of § 7114(a)(2)(A), also believed that union attendance at the EEO mediation session would violate EEOC regulations and guidance. In her view, a union not acting as the representative of the EEO complainant does not qualify as a "party" to the EEOC proceedings. Indeed, if it did, under 29 CFR 1614.405(b) the union would be able, among other things, to request reconsideration of any decision reached under the statutory process. "I again conclude that a union (not representing the complainant) is not considered by the EEOC to be a 'party' to the proceedings, and violates EEOC regulations and the ADR Act by being present at the EEO mediation sessions such as are involved in this case."

The agency has appealed this decision to the D.C. Circuit (Air Force 436th Airlift Wing v. FLRA, No. 01-1373, August 24, 2001), presumably as a prelude to Supreme Court review. Although Luke AFB v. FLRA, 208 F.3d 221 (1999) had been appealed to the Supreme Court, the Court refused to grant certiorari in 121 S. Ct. 60 (2000), perhaps because the 9th Circuit decision was a cryptic unpublished decision that merely alluded to its earlier decision in IRS, Fresno Service Center v. FLRA, 706 F.2d 1019 (9th Cir. 1983), which the DC Circuit had rejected in 1985 in NTEU v. FLRA, 774 F.2d 1181 (D.C. Cir. 1985).