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

Department of the Air Force, Luke Air Force Base, Arizona and American Federation of Government Employees, Local 1547, DE-CA-00216, April 16, 2002, 57 FLRA No. 155.

FLRA concluded the activity violated 5 U.S.C. § 7116(a)(1) and (5) when it didn't respond to a union request to bargain over the issue of when, and to whom, an EEO counseling package (consisting of blank forms and questionnaires, summaries of EEO law, and descriptions of the EEO complaint process) will be given by the activity's EEO office.

It had been the activity's practice to give an EEO package to employees alleging discrimination before the initial counseling interview. (Sometimes the union would obtain the package or send employees to the EEO office to obtain the package and have them bring it to the union's office where it would help them fill out the forms.) That was changed after the arrival of a new EEO director, and the package was given to the employee only after the interview.

When the union learned of the change, it requested bargaining over when, and to whom, the EEO package would be given. When the activity didn't respond, the union filed a ULP charge, and the General Counsel issued a complaint.

In the ULP proceeding the activity argued that FLRA had no jurisdiction over the matter because EEOC was solely responsible for interpreting and issuing regulations relating to the enforcement of 42 U.S.C. § 2000e-16. In rejecting this argument, the ALJ noted that the activity didn't cite any statutory provision that divested FLRA of its jurisdiction over ULP charges relating to actions involving the processes prescribed by EEOC. He pointed out that FLRA often has to analyze and apply provisions of laws that are administered by other agencies, and that while reviewing courts need not defer to FLRA's interpretations of laws and associated regulations administered by other agencies, this didn't mean that FLRA lacked jurisdiction. He noted, in this connection, that in GSA v. FLRA, 86 F.3d 1185 (D.C. Cir. 1996), that although the court rejected FLRA's interpretation of a statutory provision administered by GSA and instead deferred to GSA's interpretation, it nonetheless remanded the case to FLRA to determine whether there was an obligation to bargain over a change in a practice that related to the statutory provision.

The activity also argued that the change didn't involve a condition of employment because the subject matter of the change is specifically provided for by law. Moreover, even assuming a condition of employment was involved, there was no duty to bargain because the change was de minimis. And, finally, noting that the agreement's negotiated grievance procedure excluded complaints of discrimination, it argued that it had no duty to bargain because the complaint didn't involve a grievance.

In rejecting the "specifically provided for by law" argument, the ALJ noted that the activity didn't cite any specific statutory provision that governed the sequence and process for interviewing employees alleging discrimination and providing them with the EEO package. "Only those aspects of a matter that are specifically provided for by statute," the ALJ continued, "are found to be excepted from the definition of conditions of employment; the aspects of a matter over which an agency has discretion are not so excepted."

As for the "grievance" argument, the ALJ said the following:

Even assuming for the sake of argument that EEO complaints do not constitute grievances within the meaning of section 7114(a)(2)(A) of the Statute [dealing with formal discussions] as the Respondent asserts, the fact that a matter is not a grievance does not also mean that the matter cannot be a condition of employment for purposes of bargaining obligations under the Statute. Nothing in the definition set forth at section 7103(a)(14) requires a conclusion that a matter must qualify as a grievance in order to constitute a condition of employment. Moreover, to the extent that the Respondent suggests that the court's decisions in Luke Air Force Base[, 208 F.3d 221 (9th Cir. 1999)] and IRS, Fresno[ v. FLRA, 706 F.2d 1019 (9th Cir. 1983)], support a broad conclusion that a union that is a party to a collective bargaining agreement that excludes discrimination complaints from the scope of the negotiated grievance procedure has no right to be involved in the EEO process as a whole, I do not find those decisions to be so expansive. Rather, they are limited to the interpretation and application of section 7114(a)(2)(A) of the Statute.

The Authority agreed with the ALJ that FLRA had jurisdiction, that the process for an employee to obtain an EEO package is a condition of employment, and that the de minimis defense wasn't applicable here. Regarding the latter, FLRA said the following:

[W]here an agency institutes a change in a condition of employment and the change is itself negotiable, the extent of the impact of the change on unit employees is not relevant to whether an agency is obligated to bargain. See 92 Bomb Wing, Fairchild Air Force Base, Spokane, Wash., 50 FLRA 701, 704 (1995). . . . [A]s the matter is substantively negotiable, the use of de minimis is not applicable.

FLRA ordered the agency to rescind the change and to notify and, upon request, bargain with the union over the distribution procedure.