Department of the Air Force, Luke AFB, Arizona and American Federation of Government Employees, Local 1547, AFL-CIO, DE-CA-00309, May 15, 2003, 58 FLRA No. 131.

In a split decision (Chairman Cabaniss dissenting) involving a stipulated case, FLRA found that the agency committed a formal discussion ULP when it didn't notify the union and afford it an opportunity to be present at mediated meetings that resulted in a settlement agreement. In his concurring opinion, Member Armendariz said that he expected union representatives to sign confidentiality agreements covering the mediation of EEO complaints. Department of the Air Force, Luke AFB, Arizona and American Federation of Government Employees, Local 1547, AFL-CIO, DE-CA-00309, May 15, 2003, 58 FLRA No. 131.

This stipulated case involves 3 mediated meetings aimed at settling a formal EEO complaint that the Authority, relying on its precedent, found to be "formal discussions" within the meaning of § 7114(a)(2)(A). Because the union didn't receive notice of, and an opportunity to be represented at, these meetings, the Authority (chairman Cabaniss dissenting) found that the agency violated § 7114(a)(2)(A). In the process, FLRA rejected the agency's familiar claims that FLRA lacked jurisdiction; that the mediation and settlement discussions didn't meet the formality requirements of § 7114(a)(2)(A) and, moreover, didn't relate to a grievance; and that the union's presence at these meetings would conflict with EEOC regulations, the Administrative Dispute Resolution Act (ADRA) and other statutes concerning the confidentiality of employee records. We here limit ourselves to FLRA's comments on the issue of confidentiality.

In agreeing with the ALJ that the facts of this case didn't present any conflict between the union's institutional rights and the employee's rights to confidentiality in mediation and settlement discussions, FLRA found nothing in the stipulated record indicating that the union would have objected to or failed to comply with any confidentiality requirements imposed by the mediator. It noted, in this connection, that the record showed that the employee had demonstrated a willingness to discuss her complaint with, and to seek advice from, the union regarding a proposed settlement. This, said FLRA, "strongly indicates that the employee would not have objected to the Union's presence at the mediation and settlement discussions on confidentiality grounds. Moreover, the employee actively sought the Union's assistance in ensuring compliance with the terms of the settlement agreement." FLRA also rejected the agency's claim that the union's presence at the mediation sessions would violate the Privacy Act. "In rejecting these claims, we adhere to the D.C. Circuit's view that the Privacy Act concerns the confidentiality of records and does not address what parties may attend an ADR proceeding."

In his concurring opinion, Member Armendariz commented on two of the issues raised by the agency. Regarding its claim that the union, in agreeing to exclude EEO claims from the coverage of the negotiated grievance procedure, had waived any rights regarding such matters, he said the following:

[A] union's agreement to exclude EEO claims from coverage under the parties' NGP, standing alone, does not rise to the high standard of "clear and unmistakable" intent necessary to waive its statutory right to be represented at formal discussions under § 7114(a)(2)(A) of the Statute.

Regarding the protection of the employee's privacy, he said the following:

I agree with the Respondent that protecting the employee's confidentiality in this arena contributes to the success and resolution of EEO complaints. . . . [M]easures can be taken to ensure that confidentiality is addressed and maintained. In this respect, I would expect participants in mediation proceedings, including union representatives, to comply with any confidentiality requirements imposed by the ADRA or a mediator in any particular circumstance. . . . [C]onfidentiality agreements are a standard practice in many ADR contexts, and their use is encouraged in Federal dispute resolution processes where confidentiality of party-to-party communications is desired. Further, the EEOC also encourages participants to sign confidentiality agreements covering the mediation of EEO complaints. In the same vein, I would expect union representatives to sign confidentiality agreements as well.

In a one-sentence dissenting opinion, Chairman Cabaniss referred to her dissent in Dover AFB, 57 FLRA at 312-14, and indicated that she would dismiss the complaint in this case on the ground that it didn't involved a formal discussion under § 7114(a)(2)(A).