Department of the Air Force, 436th Airlift Wing, Dover Air Force Base v. Federal Labor Relations Authority, No. 01-1373 (D.C. Cir. January 17, 2003). Review of 57 FLRA No. 65.

In upholding the Authority's split decision in 57 FLRA No. 65, the D.C. Circuit reaffirmed its holding in NTEU v. FLRA, 774 F.2d 1181 (D.C. Cir. 1985), that § 7103(a)(9)'s broad definition of "grievance" encompasses both complaints filed under the negotiated grievance procedure and those filed under alternative statutory procedures.

Nor did it find, in the case at bar, a direct conflict between the "formal discussion" rights of the union under § 7114(a)(2)(A) and the rights of an employee victim of discrimination, given that there was no evidence that the employee objected to union presence at the mediation proceeding. But it added that "[w]e do not foreclose the possibility that an employee's objection to union presence could create a 'direct' conflict that should be resolved in favor of the employee as described in footnote 12 of NTEU. 774 F.2d at 1189, n. 12. As there is no conflict present in the case before us, the FLRA's construction is permissible."

In 57 FLRA No. 65, the Authority, relying on its decision in Luke AFB (54 FLRA No. 75), held that the agency committed a formal discussion ULP when it failed to notify the union of the mediation of a formal EEO complaint. It did so, notwithstanding that the NGP excluded EEO complaints and the union wasn't representing the employee in the statutory procedure. Although the 9th Circuit had reversed FLRA's Luke decision in Luke AFB v. FLRA, 208 F.3d 221 (9th Cir. 1999), cert. denied, 121 S. Ct. 60 (2000)), FLRA said that "we . . . do not acquiesce in the 9th Circuit's view of the scope of the term 'grievance.'" 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, violated EEOC regulations. The agency appealed.

The court reaffirmed its view, expressed in NTEU v. FLRA, 774 F.2d 1181 (D.C. Cir. 1985), that § 7103(a)(9)'s broad definition of "grievance" encompasses both complaints filed under the negotiated grievance procedure and those filed under alternative statutory procedures. It rejected the agency's suggestion that NTEU is distinguishable from the case at bar because it involved an MSPB proceeding, noting that "our analysis in NTEU relied upon the text, structure, and legislative history of the Act and did not rest on the type of grievance in question." Since the case at bar involved a "grievance" as defined in § 7103(a)(9), the union's "formal discussion" rights under § 7114(a)(2)(A) were triggered and the question before the court was whether FLRA's interpretation of § 7114(a)(2)(A) is reasonable. After noting that "FLRA's construction is a natural reading of the broad statutory language" and is consistent with the court's decision in NTEU, it considered the agency's other arguments.

The agency had argued that FLRA's construction is impermissible and urged the court to follow the 9th Circuit's decision in IRS, Fresno, 706 F.2d 1019, where the 9th Circuit held, among other things, that EEOC procedures aren't controlled by sections 7103 and 7114. The court responded by noting that it had already disagreed with the 9th Circuit's narrow reading of § 7114(a)(2)(A) "Furthermore, as we pointed out in NTEU, IRS Fresno appears 'to be based primarily on its conclusion that the precomplaint conference did not constitute a "formal" discussion' rather than on its brief analysis of the grievance issue." Moreover, "the Ninth Circuit itself has noted that our reasoning in NTEU, rejecting the IRS Fresno analysis, is more persuasive than that court's own reasoning in IRS Fresno. Veterans Affairs Med. Ctr., 16 F.3d at 1534 n.4.".

The agency, citing footnote 12 of the D.C. Circuit's NTEU decision, argued the primacy of an aggrieved employee's rights in the context of a discrimination claim. That footnote reads, in part, as follows:

The court didn't reject the argument, but instead noted that there was no evidence of a direct conflict between the above rights of the union and the employee in the case at bar.

The court also rejected the agency's claim that there was a conflict between FLRA's interpretation of § 7114(a)(2)(A) and the confidentiality protections of sections of the ADR and Privacy Acts. Neither act, the court held, prohibits union attendance at ADR proceedings, dealing instead with the confidentiality of records or communications made at an ADR proceeding.

In concluding that there was no conflict between FLRA's interpretation of ' 7114(a)(2)(A) and the acts and regulations cited by the agency, the court said the following:

In its decision in 57 FLRA No. 65, the Authority noted that "neither the Authority nor the courts have ruled that unions have an absolute right to attend discussions about EEO complaints," and cited footnote 12 of NTEU as well as FLRA's decision in Dep't of Justice, Ray Brook, N.Y., 29 FLRA 584, 590 (1987) where it had said where there is a "conflict between rights under section 7114(a)(2)(A) and those under other statutes, we will consider that conflict in determining whether section 7114(a)(2)(A) has been violated." Given the court's remarks about footnote 12 in the case at bar and the fact that Chairman Cabaniss had dissented in 57 FLRA No. 65, it appears that the Authority might find that the union doesn't have a formal discussion right to attend ADR proceedings provided that there is evidence that the employee complainant objected to union attendance.