52:1039(107)CA - - Marine Corps Logistics Base, Barstow, CA and AFGE Local 1482 - - 1997 FLRAdec CA - - v52 p1039



[ v52 p1039 ]
52:1039(107)CA
The decision of the Authority follows:


52 FLRA No. 107

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

MARINE CORPS LOGISTICS BASE

BARSTOW, CALIFORNIA

(Respondent)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 1482, AFL-CIO

(Charging Party/Union)

SF-CA-50392

_____

DECISION AND ORDER

February 28, 1997

_____

Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Donald S. Wasserman, Members.

I. Statement of the Case

This unfair labor practice case is before the Authority on exceptions to the attached decision of the Chief Administrative Law Judge filed by the Respondent. The General Counsel filed an opposition to the Respondent's exceptions.

The complaint alleges that the Respondent violated section 7116(a)(1) and (8) of the Federal Service Labor-Management Relations Statute (the Statute) by holding a formal discussion with a bargaining unit employee concerning the employee's pending Equal Employment Opportunity (EEO) complaint without affording the Union notice and an opportunity to be represented at the discussion as required by section 7114(a)(2)(A) of the Statute. The Judge found that the Respondent violated the Statute as alleged.

Upon consideration of the Judge's Decision and the entire record, and for the reasons stated below, we adopt the Judge's findings, conclusions, and recommended Order.

II. Background and Judge's Decision

The facts are set forth in the Judge's decision and are briefly summarized here. Richard Leader, a unit employee, filed a formal EEO complaint against the Respondent. Three meetings were held to discuss and resolve the complaint. The first two meetings were attended by Leader, a Union representative, the Respondent's General Counsel, and the Respondent's Deputy EEO Director. The Union representative attended on behalf of the Union rather than as Leader's personal representative. The third meeting, which is the subject of the unfair labor practice (ULP) complaint, was attended by Leader and the Respondent's General Counsel. The Respondent did not notify the Union of that meeting, during which Leader signed a settlement agreement proposed by the Respondent. The Union was not shown or given a copy of the agreement.

As an initial matter, the Judge rejected the Respondent's argument that the ULP complaint should be dismissed on the ground that the General Counsel failed to serve the charge and the complaint on the Respondent by certified mail or in person as specified in section 2429.27(b) of the Authority's Regulations.(1) The Judge found that the Respondent timely received a copy of the charge by internal mail(2) and had a full opportunity to state its position to the representatives of the Authority's General Counsel while the charge was being investigated and prior to issuance of the complaint.(3) Further, the Judge found that the Respondent did not allege that it was prejudiced by the way in which the charge was served. Finally, the Judge found that the Respondent received a copy of the complaint in a timely fashion by regular mail and that the Respondent had adequate time to prepare for and participate in the unfair labor practice hearing. In making his findings on this issue, the Judge rejected the Respondent's reliance on U.S. Department of the Treasury, Bureau of Engraving and Printing and International Plate Printers, Die Stampers and Engravers Union, Washington Plate Printers Union, Local 2, 44 FLRA 926 (1992) (DOT).

With respect to the merits, the Judge found that the Respondent violated section 7116(a)(1) and (8) of the Statute by conducting a meeting with Leader that was a discussion, which was formal, between one or more representatives of the Respondent and a bargaining unit employee concerning his EEO complaint without affording the Union notice and an opportunity to be represented at the discussion, as required by section 7114(a)(2)(A). In particular, the Judge rejected the Respondent's contention that a formal EEO complaint filed by an employee does not constitute a "grievance" within the meaning of section 7114(a)(2)(A). The Judge noted that in Ray Brook (4), the Authority adopted the decision of the U.S. Court of Appeals for the District of Columbia Circuit in National Treasury Employees Union v. FLRA, 774 F.2d 1181 (D.C. Cir. 1983) (NTEU v. FLRA) and rejected the decision of the U.S. Court of Appeals for the Ninth Circuit in Internal Revenue Service, Fresno Service Center, Fresno, California v. FLRA, 706 F.2d 1019 (9th Cir. 1983) (IRS, Fresno). In so doing, the Authority held that a meeting conducted to attempt resolution of an individual employee's complaint of discrimination may constitute a formal discussion concerning a grievance within the meaning of section 7114(a)(2)(A) of the Statute. The Judge concluded that the Respondent violated the Statute as alleged.

III. Positions of the Parties

A. Respondent's Exceptions

The Respondent excepts to the Judge's rejection of its argument that the complaint should be dismissed on the ground that the complaint and the charge were not served in the manner specified in section 2429.27(b) of the Regulations. The Respondent asserts that under DOT,(5) service of documents covered by section 2429.27(b) must be by certified mail or in person.

The Respondent also excepts, on two grounds, to the Judge's determination that section 7114(a)(2)(A) applies to EEO settlement agreements of formal EEO complaints under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §á2000e et seq. (the EEO Statute). First, citing IRS, Fresno and Department of Veterans Affairs Medical Center, Long Beach, California v. FLRA, 16 F.3d 1526, 1534 (9th Cir. 1994) (VA, Long Beach), the Respondent asserts that, "in the Respondent's view," the U.S. Court of Appeals for the Ninth Circuit has held that section 7114(a)(2)(A) does "not apply to any EEOC proceeding whether it be at the informal or the formal complaint stage[,]" and the Respondent contends that the Authority should adopt this holding. Exceptions at 10. Second, relying on United States Immigration and Naturalization Service v. FLRA, 4 F.3d 268 (4th Cir. 1993) (INS), the Respondent argues that EEO settlement agreements under the EEO Statute are specifically provided for by law and excluded from the definition of "conditions of employment" under section 7103(a)(14)(C) of the Statute. Therefore, according to the Respondent, discussions of these agreements are not formal discussions within the meaning of section 7114(a)(2)(A).(6)

B. General Counsel's Opposition

The General Counsel contends that the Judge correctly found that the Respondent timely received copies of the charge and the complaint and was not prejudiced in any way by the manner of service. According to the General Counsel, the Judge also correctly found that the Respondent's reliance on DOT was misplaced because DOT involved the unique situation of an agency head's disapproval of a collective bargaining agreement pursuant to section 7114(c) of the Statute. Finally, the General Counsel argues that the Judge correctly concluded that the meeting constituted a formal discussion within the meaning of the Statute and that INS is distinguishable from the instant case.

IV. Analysis and Conclusions

A. The Manner of Service of the Complaint and the Charge Does Not Require Dismissal of the Complaint

The provision in the Authority's Regulations specifically setting forth the requirements for service of complaints is section 2429.12(a), which states, in relevant part, that "complaints . . . shall be served personally or b[y] certified mail or by telegraph."(7) The Respondent was not served with the complaint in the manner set forth in the Authority's Regulations.

We do not condone the General Counsel's failure to serve the complaint on the Respondent in accordance with the Authority's Regulations. However, the Respondent acknowledged that it received the complaint by regular mail and that the "receipt . . . did not interfere with [its] preparation for the case[.]" Transcript at 8. In this regard, the Respondent did not take exception to the Judge's finding that the Respondent "suffered no prejudice as a result of having been served with the complaint by regular rather than certified mail." Judge's Decision at 6. Where no prejudice results from such a technical error with respect to a complaint, we will excuse the error. Cf. NLRB v. Dredge Operators, Inc., 19 F.3d 206, 214 (5th Cir. 1994) (technical error of lack of formal notice of hearing in complaint was excused where respondent was prepared for and participated in the proceeding and no prejudice was asserted by respondent or found by the court); NLRB v. Royal Palm Ice Co., 193 F.2d 569, 570 (5th Cir. 1952) (although the complaint and notice of hearing may not have been signed correctly, the respondent was sufficiently apprised of the official issuance of both documents). In this case, as it is clear that the Respondent timely received the complaint and was not prejudiced by the manner in which the complaint was served, we find that dismissal of the complaint is not warranted for failure to serve the complaint in the manner specified in the Authority's Regulations.

Similarly, we reject the Respondent's argument that the manner of service of the charge requires dismissal of the complaint in this case. The only statutory filing requirement under section 7118(a)(4)(A) is that a charge must be filed within 6 months of the alleged unfair labor practice in order for a complaint to be issued.(8) Under section 2423.6(b) of the Regulations, "the charging party shall be responsible for the service of a copy of the charge . . . upon the person(s) against whom the charge is made . . . . The Regional Director will, as a matter of course, cause a copy of such charge to be served on the person(s) against whom the charge is made, but shall not be deemed to assume responsibility for such service."

As found by the Judge, it is undisputed that the charge in this case was filed within 6 months of the alleged unfair labor practice. The Respondent acknowledged that the charge was timely served by internal mail and that another copy was timely received from the General Counsel by regular mail. The Respondent does not allege that the manner in which the charge was served prejudiced its opportunity to state its position to the representatives of the Authority's General Counsel while the charge was being investigated and prior to issuance of the complaint. Where, as here, there is no question that the Respondent timely received a copy of the charge, had a full opportunity to state its position to the representatives of the Authority's General Counsel while the charge was being investigated and prior to issuance of the complaint, and does not allege that it was prejudiced by the way in which the charge was served, dismissal of the complaint for failure to serve the charge in the manner specified in the Authority's Regulations is not warranted.(9) Cf. Hospital & Service Employees Union, Local 399 v. NLRB, 798 F.2d 1245, 1248-49 (9th Cir. 1986) (no prejudice resulted from faulty service of charges where employer was aware of the charges); Olin Industries v. NLRB, 192 F.2d 799, 799 (5th Cir. 1952) (service of unfair labor practice charges against employer by ordinary mail, rather than by registered mail as provided by NLRB rules, was a mere technical defect and did not render the proceeding before the NLRB invalid in absence of showing of prejudice resulting to the employer); Control Services, Inc. and Local 32B-32J, Service Employees International Union, AFL-CIO, 303 NLRB 481, 481 (1991) (the NLRB has long held that procedural requirements regarding proof of service should be liberally construed, and that when charges have in fact been received, technical defects in the form of service do not affect the validity of service).

B. The Respondent Violated Section 7116(a)(1) and (8)

1. IRS, Fresno and VA, Long Beach Do Not Warrant Dismissal of the Complaint

We reject the Respondent's reliance on IRS, Fresno, 706 F.2d at 1023-24, to support its position that section 7114(a)(2)(A) does not apply to any EEOC proceeding, whether at the informal or the formal complaint stage. In IRS, Fresno, the Ninth Circuit held that the union's right to representation at formal discussions pursuant to section 7114(a)(2)(A) "do[es] not apply to the EEO precomplaint conciliation conference involved in [that] case." IRS, Fresno, 706 F.2d at 1021. The court held that, by the terms of the applicable EEOC regulation, the meeting was "informal" and it noted the confidentiality requirements of EEO complaints at the informal stage. Id. at 1023-24. The court further held that the EEO complaint was not a "grievance," because the regulatory EEOC procedures involved in the case were unrelated to the contractual grievance process. Id. at 1024. In support of this conclusion, the court pointed out that the parties' collective bargaining agreement excluded discrimination complaints from its grievance procedure. Id. at 1024-25.

The Authority has previously fully considered the conflict between this decision and the D.C. Circuit's decision in NTEU v. FLRA, which disagreed with the Ninth Circuit's construction of the term "grievance." In Ray Brook, the Authority concluded, consistent with the rationale in NTEU v. FLRA, that a grievance within the meaning of section 7114(a)(2)(A) can encompass a statutory appeal. Accordingly, to the extent that the Respondent is relying on IRS, Fresno, we reject such reliance for the reasons set forth in Ray Brook. See Ray Brook, 29 FLRA at 589-90.

In any event, this case is distinguishable from IRS, Fresno on three grounds. First, as the Judge found and the Respondent does not dispute, the EEO proceeding here was at the formal complaint stage. Although formal complaint procedures are governed by regulations promulgated by the EEOC, they lack certain features that the IRS, Fresno court found "critical" in the informal proceedings at issue there. For example, in IRS, Fresno, the applicable regulations required that an EEO counselor "seek a resolution of the matter on an informal basis" before the formal complaint system could be activated. Id. at 1024 (quoting from 29 C.F.R. § 1613.213(a)). The meeting at issue in IRS, Fresno was convened by the counselor for this purpose. Id. In contrast, the meeting in this case took place after the filing of a formal complaint and was convened not by an EEO counselor, but by the Respondent's General Counsel.

Second, the confidentiality concerns associated with the precomplaint proceedings noted by the IRS, Fresno court are absent here. Cf. Department of Veterans Affairs Medical Center, Denver, Colorado v. FLRA, 3 F.3d 1386, 1391 (10th Cir. 1993) (court found meeting concerning Merit Systems Protection Board (MSPB) proceeding to be a formal discussion, distinguishing IRS, Fresno in part by noting the absence of confidentiality concerns). At the precomplaint stage, the EEO counselor is prohibited from revealing the identity of a person consulting him. IRS, Fresno, 706 F.2d at 1023 (citing 29 C.F.R. § 1613.213(a)). In this case the complainant's identity had already been revealed prior to the first meeting attended by Leader, the Respondent and the Union to discuss the settlement of Leader's EEO complaint. The Union was invited and did attend two settlement discussions concerning Leader's EEO complaint.

Third, it is not inconsistent with IRS, Fresno and its progeny to find that the discrimination complaint at issue is a "grievance" for the purposes of section 7114(a)(2)(A). Under Ninth Circuit precedent, an employee complaint processed under a statutory process is not per se excluded under the definition of "grievance" for the purposes of section 7114(a)(2)(A). See VA, Long Beach, 16 F.3d at 1533-34 (meeting with bargaining unit employees in preparation for MSPB proceeding concerned a "grievance"). In distinguishing IRS, Fresno, the court in VA, Long Beach found relevant that there was no indication that the dispute was excluded from the parties' negotiated grievance procedure, and therefore, the complaint could have been brought either under the grievance procedure or under the statutory appeal process. Id. The court concluded that the case concerned a matter intimately connected with the union's collective bargaining agreement. Id. at 1534. There is no indication in this case that discrimination complaints are excluded from the negotiated grievance procedure.

Furthermore, the Respondent mistakenly relies on dicta in VA, Long Beach characterizing IRS, Fresno as holding that "the protections of the Statute [do not] apply to proceedings conducted by EEOC." Id. VA, Long Beach concerned the applicability of section 7114(a)(2)(A) to discussions regarding MSPB proceedings. In distinguishing IRS, Fresno, the court in VA, Long Beach unnecessarily overstated the prior holding. We find nothing in IRS, Fresno that supports such a broad reading. Rather, the court in IRS, Fresno limited its holding to the specific circumstances of that case, namely that "5 U.S.C. § 7114(a)(2)(A) does not apply to precomplaint conciliation conferences such as that involved here[.]" 706 F.2d at 1025 (emphasis added).

2. Section 7103(a)(14)(C) Does Not Warrant Dismissal of the Complaint

We also reject the Respondent's argument that EEO settlement agreements under the EEO Statute are excluded from the definition of "conditions of employment" under section 7103(a)(14)(C) of the Statute, and, therefore, discussions of these agreements are not formal discussions within the meaning of section 7114(a)(2)(A). Section 7103(a)(14)(C) excepts from the definition of conditions of employment personnel policies, practices, and other matters (hereinafter matters) to the extent that they are "specifically provided for" by Federal statute. See American Federation of Government Employees, AFL-CIO, Local 1897 and Department of the Air Force, Eglin Air Force Base, Florida, 24 FLRA 377, 378-79 (1986). See also American Federation of Government Employees v. FLRA, 653 F.2d 669, 670 (D.C. Cir. 1981). Mere reference to a matter in a statute is not sufficient to exclude it from the definition of conditions of employment under section 7103(a)(14)(C). See International Association of Machinists and Aerospace Workers, Franklin Lodge No. 2135, et al. and U.S. Department of the Treasury, Bureau of Engraving and Printing, 50 FLRA 677, 681 (1995), affirmed, 88 F.3d 1279 (D.C. Cir. 1996). Under the terms of section 7103(a)(14)(C), the statute must "specifically provide[] for" the matter, and the exception applies only "to the extent that" it does so. Id.

The Respondent has not identified any statutory provision that specifically provides for the conduct of settlements of EEO complaints. The statute cited by the Respondent, 42 U.S.C. § 2000e-16, provides that the Federal Government shall not discriminate on the basis of race, color, religion, sex, or national origin in effecting personnel actions; grants the EEOC authority to enforce these provisions; and grants employees or applicants the right to file civil actions. Nothing in these provisions addresses employee representation, the role of exclusive representatives, or the settlement of complaints.

The Respondent's reliance on INS in this context is misplaced. In INS, the court held that a collective bargaining agreement provision that would establish standards for employer liability for sexual harassment, a form of discrimination based on sex, was outside the agency's obligation to bargain. INS, 4 F.3d at 273-74. The court found that employer liability for acts of sexual harassment is specifically provided for by 42 U.S.C. § 2000e-16 and, therefore, under section 7103(a)(14)(C), is not a condition of employment subject to collective bargaining. Id. The court's determination was limited to finding that liability for discrimination was provided for by statute and could not be altered through collective bargaining. Id. at 274 n.10 ("42 U.S.C. § 2000e-16's comprehensiveness and exclusivity are enough to preclude negotiation about federal sector employment discrimination[.]") (emphasis added). Nothing in the court's holding implies that the relevant statutory provisions affect a union's right to represent employees or otherwise be involved in complaints arising under those provisions.(10)

Accordingly, we find no basis on which to conclude that discussions of EEO settlement agreements do not concern conditions of employment within the meaning of section 7103(a)(14)(C) of the Statute.

Consistent with the foregoing, we conclude, in agreement with the Judge, that the meeting was a discussion, which was formal, between one or more representatives of the Respondent and a bargaining unit employee concerning a grievance (the settlement of a pending EEO complaint), without affording the Union notice and an opportunity to be represented at the discussion, as required by section 7114(a)(2)(A) of the Statute. 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(a)(1) and (8) of the Statute.

V. Order

Pursuant to section 2423.29 of the Authority's Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, the Marine Corps Logistics Base, Barstow, California shall:

1. Cease and desist from:

(a) Conducting formal discussions with bargaining unit employees represented by the American Federation of Government Employees, Local 1482, AFL-CIO, the agent of the bargaining unit employees' exclusive representative, without first notifying the Union and affording it the opportunity to be represented at such formal discussion, concerning any grievance or any personnel policy or practices or other general condition of employment, including meetings at which formal EEO complaints are resolved.

(b) In any like or related manner interfering with, restraining, or coercing bargaining unit employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.

2. Take the following affirmative action in order to effectuate the purposes and policies of the Federal Service Labor-Management Relations Statute:

(a) Post at its facility in Barstow, California, copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the Commanding Officer and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that such Notices are not altered, defaced, or covered by any other material.

(b) Pursuant to section 2423.30 of the Authority's Regulations, notify the Regional Director of the San Francisco Regional Office, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply.

NOTICE TO ALL EMPLOYEES

POSTED BY ORDER OF THE

FEDERAL LABOR RELATIONS AUTHORITY

The Federal Labor Relations Authority has found that the Marine Corps Logistics Base, Barstow, California 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 conduct formal discussions with bargaining unit employees represented by the American Federation of Government Employees, Local 1482, AFL-CIO, the agent of the bargaining unit employees' exclusive representative, without first notifying the Union and affording it the opportunity to be represented at such formal discussion concerning any grievance or any personnel policy or practices or other general condition of employment, including meetings at which formal EEO complaints are resolved.

WE WILL NOT in any like or related manner interfere with, restrain or coerce bargaining unit employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.

_____________________________
(Activity)

Dated:______________ By: _________________________________

(Signature) (Title)

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 provisions, they may communicate directly with the Regional Director, San Francisco Region, Federal Labor Relations Authority, whose address is: 901 Market Street, Suite 220, San Francisco, California 94103-1791, and whose telephone number is: (415) 356-5000.




UNITED STATES OF AMERICA

FEDERAL LABOR RELATIONS AUTHORITY

OFFICE OF ADMINISTRATIVE LAW JUDGES

WASHINGTON, D.C. 20424-0001

MARINE CORPS LOGISTICS BASE

BARSTOW, CALIFORNIA

Respondent

and

AMERICAN FEDERATION OF GOVERNMENT

EMPLOYEES, LOCAL 1482, AFL-CIO

Charging Party

Case No. SF-CA-50392

Henry J. Noonan, Esq.
For the Respondent

John R. Pannozzo, Jr., Esq.
For the General Counsel

Dale E. Boyce
For the Charging Party

Before: SAMUEL A. CHAITOVITZ
Chief Administrative Law Judge

DECISION

Statement of the Case

This case arose under the Federal Service Labor-Management Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C. § 7101, et seq. (Statute), and the Rules and Regulations of the Federal Labor Relations Authority (FLRA or Authority), 5 C.F.R. § 2411, et seq.

Based upon an unfair labor practice charge filed by American Federation of Government Employees, Local 1482, AFL-CIO (Union) against the Marine Corps Logistics Base, Barstow, California (Respondent), a Complaint and Notice of Hearing was issued on behalf of the General Counsel (GC) of the FLRA by the Regional Director for the San Francisco Region of the FLRA. The complaint alleged that the Respondent failed to comply with section 7114(a)(2)(A) of the Statute by holding a formal discussion concerning an employee's pending EEO complaint without affording the Union an opportunity to be represented, thereby violating section 7116(a)(1) and (8) of the Statute. Respondent filed an answer, as amended, denying the substantive allegations of the complaint.

A hearing was held in Barstow, California. All parties were afforded a full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence. GC of the FLRA and the Respondent filed post-hearing briefs which have been carefully considered.

Based upon the entire record, including my observation of the witnesses and their demeanor, I make the following findings of fact, conclusions and recommendations.

Findings of Fact

A. Background

The American Federation of Government Employees (AFGE) is the exclusive representative of a nationwide unit of employees appropriate for collective bargaining, including employees at the Respondent's Barstow, California facilities. The Union is AFGE's agent for purposes of representing the Respondent's employees. At all times material to this case, Richard Leader has been an employee in the unit represented by the Union and Dale Boyce has been the Union's president. Thomas J. Lundstrom is Respondent's General Counsel; Patricia Smith is the Deputy EEO Director; and Gary Baker is Deputy Director of MC-3, the Respondent's largest division.

B. The Processing of Leader's EEO Complaint

Sometime prior to October 1994, while employed as a work leader in the Respondent's body shop (a bargaining unit position), Richard Leader filed a formal EEO complaint against the Respondent. Thereafter, Leader attended three meetings with management to discuss and resolve his complaint.

1. The October 13 meeting

The first meeting was held on October 13, 1994 in General Counsel Lundstrom's office and lasted about 15-20 minutes. In addition to Leader, Boyce attended on behalf of the Union rather than as Leader's personal representative. Also in attendance were Deputy EEO Director Smith and Lundstrom.(1) The meeting was called to enable the Respondent to learn whether and on what basis Leader wanted to settle his EEO complaint. As reflected in Boyce's notes taken at the meeting, Leader stated that he wanted to be permanently assigned to the position of shop planner in one of MC-3's business centers rather than to the position of work leader in the body shop; backpay representing the difference in the two positions; a pay increase from step 4 to step 5; and pay for the overtime hours worked by another employee (Brown) during the period in question.

According to Boyce, Lundstrom agreed to assign Leader permanently to the shop planner position and to grant him a step increase, but disagreed with the amount of backpay and overtime that Leader was seeking. That is, Leader stated that employee Brown had worked 170 hours of overtime to which Leader should have been entitled, while Lundstrom pointed out that Leader had worked 40 hours of overtime during that same period, a difference of 130 hours. Lundstrom promised Leader that he would discuss the overtime question with Deputy Director Baker, who had the final authority to resolve EEO complaints, and the parties agreed to meet again in Lundstrom's office on Monday, October 17, 1994, at 11:45 a.m.

2. The October 17 meeting

By the time that the parties reconvened as scheduled on October 17, Lundstrom had discussed the overtime issue with Baker and had been given certain parameters within which to negotiate a settlement with Leader. At the meeting, which again lasted for about 15-20 minutes, Lundstrom offered Leader 68 hours of overtime at the rate of $20 per hour.(2) Leader responded angrily and loudly that Lundstrom's offer was "lousy," since Brown could have worked 198 hours of overtime and the Respondent's offer of 68 hours was less than half of the 170 hours Brown had received.(3) Leader then offered to settle for 130 hours of overtime at the "super rate" which, according to Leader's calculations, totaled $3,724.50.(4) Lundstrom replied that he was not authorized to settle the matter on Leader's terms, but would have to check with Baker again.(5) No date was set for another meeting. As Boyce testified, he expected Lundstrom to consult with Baker and then notify Boyce either that the matter was settled on Leader's terms or that a formal hearing before an administrative law judge would be scheduled. The meeting concluded with Boyce leaving Lundstrom's office through the rear door in order to return to his office.(6)

3. The October 31 Meeting

On or about October 27, 1994, Lundstrom telephoned Leader's immediate supervisor and explained that Leader was involved in an EEO matter and that Lundstrom needed to see Leader at the employee's convenience. The supervisor was asked to have Leader schedule an appointment, but was not told that Leader could choose not to come.(17) Leader thereafter contacted Lundstrom's office and scheduled a meeting for October 31.

On October 31, Leader traveled the 12 miles from his workplace to Lundstrom's office and met privately with Lundstrom for about 15-20 minutes. Boyce had received no notice of the meeting and did not attend. Lundstrom read the terms of a prepared settlement agreement to Leader and discussed its contents.(18) Before the meeting ended, Leader signed the settlement agreement. Deputy Director Baker signed it a week to 10 days later. Boyce was neither shown nor given a copy.

C. Subsequent Events

At a partnership meeting on December 15, 1994, Boyce was told by Lundstrom that the Respondent was meeting with employees who had filed formal EEO complaints and was signing settlement agreements in those cases without notifying the Union. On December 21, Boyce filed a request for information concerning the EEO settlement offers that had been made, the EEO settlements that were reached, and the parties who were in attendance. The information provided to Boyce on February 23, 1995, included the settlement agreement dated October 31, 1994, pertaining to Leader. The cover letter accompanying the information, signed by Esther Gonzales, head of the Respondent's Labor and Employee Relations Branch, stated that "[i]n Mr. Leader's case, I was informed that you were present." On March 2, 1995, the Union filed the unfair labor practice charge in this case.

Discussion and Conclusions of Law

A. Preliminary Issue

Respondent contends that the complaint in this case should be dismissed because the General Counsel failed to serve either the unfair labor practice charge or the complaint on the Respondent in the manner specified in the Authority's Rules and Regulations. More specifically, the Respondent asserts that section 2429.27(b) of the Authority's Rules and Regulations requires service of these documents to be made by certified mail or in person, but that neither method was used in this case. Accordingly, the Respondent contends, it is too late for service to be effectuated consistent with such Rules and Regulations, and thus the complaint must be dismissed. I disagree.

Section 7118(a)(4)(A) of the Statute requires that an unfair labor practice charge be filed with the Authority no later than 6 months after the alleged occurrence. There is no dispute in this case that the Union properly and timely filed its charge with the Authority. While it is true that the Respondent was not served with the charge by certified mail or in person, it did receive a copy from the Union by "guard" mail and another copy from the Authority's San Francisco Region by regular mail. Respondent admittedly received both copies in a timely manner and had a full opportunity to state its position to the representatives of the General Counsel while the charge was being investigated and prior to issuance of a complaint. In short, the Respondent does not allege that it was prejudiced at all by the way that the charge was served.

Similarly, the Respondent concedes that it suffered no prejudice as a result of having been served with the complaint by regular rather than certified mail. It acknowledges that the complaint was received in a timely fashion that permitted adequate time to prepare for and participate in the unfair labor practice hearing. Under these circumstances, I conclude that the complaint in this case was properly before me despite the General Counsel's failure to serve the complaint on the Respondent by certified mail or in person as prescribed by the applicable Rules and Regulations. As the Authority has found, if the issuance and the contents of a complaint are in compliance with the Rules and Regulations of the Authority, the complaint is valid. See U.S. Department of Commerce, Bureau of the Census, Washington, D.C. and Bureau of the Census, Data Preparation Division, Jeffersonville, Indiana, 43 FLRA 272, 282-83 (1991).

Contrary to the Respondent's assertion, a finding that the charge and complaint were not served in accordance with the Authority's Rules and Regulations would not require dismissal of the complaint. That is, since the charge was properly and timely filed with the Authority, and there is no statutory time limit on the issuance of a complaint based on a timely charge, any imperfection in the method of service could be cured at any time. Where no prejudice of any kind has resulted from the method of service, however, I find that no purpose would be served by requiring service to be effectuated in accordance with section 2429.27(b) of the Authority's Rules and Regulations.(9)

The cases cited by the Respondent are inapposite here. They involve agency head disapprovals of locally negotiated agreements where the issue of timely service on the Union has a statutory significance that is absent in this case. Thus, if an agency head disapproval is not served on the union within 30 days from the date that the local agreement was executed, as required by the Statute, the agreement takes effect automatically and is binding on the parties by virtue of section 7114(c)(3), and the Authority is required to dismiss a union's subsequent negotiability appeal seeking to challenge the agency head's untimely disapproval. See, for example, American Federation of Government Employees, National Mint Council and U.S. Department of the Treasury, Bureau of the Mint, San Francisco, California, 41 FLRA 1004, 1009-10 (1991). By contrast, the failure or untimeliness of service on the Respondent in this case would have no similar consequences, as long as no prejudice thereby resulted. Accordingly, I shall proceed to consider the substance of the complaint.

B. Respondent Held a Formal Discussion Concerning a Grievance on October 31 Without Notifying the Union

The complaint alleges that the Respondent violated section 7116(a)(1) and (8) of the Statute by conducting a formal discussion with a unit employee concerning his EEO complaint under section 7114(a)(2)(A) without notice to the Union. I find that the record evidence supports the allegation.

It is well established that a union has the right to be represented at a formal discussion between management and one or more unit employees concerning any grievance or any personnel policy or practice or other general condition of employment, within the meaning of section 7114(a)(2)(A) of the Statute, in order to safeguard its interests and the interests of bargaining unit employees as viewed in the context of the union's full range of responsibilities under the Statute. General Services Administration, 50 FLRA 401, 404 (1995); U.S. Department of Justice, Bureau of Prisons, Federal Correctional Institution (Ray Brook, New York), 29 FLRA 584, 588-89 (1987), aff'd sub nom. American Federation of Government Employees, Local 3882 v. FLRA, 865 F.2d 1283 (D.C. Cir. 1989).

It is equally well settled that all four elements of section 7114(a)(2)(A) must be satisfied in order to establish a union's right to be represented. That is, (1) there must be a discussion (2) which is formal (3) between one or more unit employees and management representatives (4) concerning a grievance or any personnel policy or practices or other general condition of employment. Defense Logistics Agency, Defense Depot Tracy, Tracy, California, 39 FLRA 999, 1012 (1991). It is undisputed here that a unit employee (Leader) met with a management official (General Counsel Lundstrom) on October 31, 1994, to discuss and resolve a formal EEO complaint filed by Leader. While the Respondent contends that such a complaint does not constitute a "grievance" within the meaning of section 7114(a)(2)(A) of the Statute, Authority decisions find that it does.(10) Accordingly, the remaining question is whether Lundstrom's discussion with Leader concerning the EEO complaint was "formal" within the meaning of section 7114(a)(2)(A) of the Statute. For the reasons stated below, I conclude that it was.

In deciding whether a discussion or meeting is formal under section 7114(a)(2)(A), the Authority considers the totality of the facts and circumstances of the case. Marine Corps Logistics Base, Barstow, California, 45 FLRA 1332, 1335 (1992). Among other factors, the Authority examines: (1) whether the person who held the meeting is a first-level supervisor or is higher in the management hierarchy; (2) whether any other management representatives attended; (3) where the meeting took place; (4) how long the meeting lasted; (5) how the meeting was called; (6) whether a formal agenda was established; (7) whether employee attendance was mandatory; and (8) the manner in which the meeting was conducted. Id.; see also U.S. Department of Labor, Office of the Assistant Secretary for Administration and Management, Chicago, Illinois, 32 FLRA 465, 470 (1988).

In this case, the record shows that Lundstrom, the individual who held the meeting, was the Respondent's General Counsel rather than Leader's first-level supervisor, and generally did not get involved in settling EEO matters but allowed lower-level management representatives to do that work. The meeting was held in Lundstrom's office, located 12 miles from Leader's workplace, and while no other management representatives were present, the Respondent's Deputy EEO Director had attended the two prior meetings concerning Leader's EEO complaint which led to its resolution on October 31. The meeting was called by Lundstrom, who telephoned Leader's immediate supervisor for the express and exclusive purpose of having Leader come to his office to discuss and resolve the pending EEO complaint. Leader was never advised that he had the discretion not to set a time to meet with Lundstrom,(11) and the record shows that such a meeting was mandatory if Leader wanted to settle his EEO complaint. The meeting on October 31 lasted approximately 15-20 minutes, the same amount of time as the prior meetings on October 13 and 17. The only subject discussed was settlement of Leader's EEO complaint, with Lundstrom reading and explaining the previously prepared formal settlement agreement to Leader, at the conclusion of which Leader signed it. Under these circumstances, I conclude that the October 31 meeting constituted a "formal discussion" within the meaning of section 7114(a)(2)(A).

C. The Union Never Waived the Right to be Represented at the October 31 Meeting

I reject the Respondent's contention that Boyce was not notified of and therefore did not attend the October 31 meeting on behalf of the Union solely because he told Lundstrom at the conclusion of the previous meeting on October 17 that there was no need for him to attend if Leader's EEO complaint were settled on the terms already discussed. As noted earlier, I have credited Boyce's testimony that he never made such statements to Lundstrom. I find it highly unlikely that Boyce, who attended both meetings at which Leader's EEO complaint was discussed and who had a strong interest in knowing how the matter was resolved in light of his responsibility to personally represent another unit employee in a pending EEO matter, would simply choose to absent himself while two important issues in the Leader case remained pending. Thus, at the conclusion of the October 17 meeting, Lundstrom had offered Leader 68 hours of overtime at the rate of $20 per hour, a total of $1,360, while Leader had offered to compromise by reducing his original demand to 130 hours at the rate of $28.65 per hour, a total of $3,724.50. Since the Respondent's offer was only 36% of what Leader had offered to accept as a compromise of his claim, I conclude that Boyce would not have viewed the matter as having reached the point of settlement.(12)

Accordingly, I further conclude that the Respondent had the obligation to notify Boyce of the October 31 formal discussion concerning Leader's EEO complaint, and that its failure to do so constituted a violation of section 7116(a)(1) and (8) of the Statute as alleged.

D. The Appropriate Remedy

Neither the GC of the FLRA nor the Union is seeking a rescission of the "Negotiated Settlement Agreement" signed by Leader and dated October 31, 1994. Instead, the General Counsel requests that the Respondent be ordered to cease and desist from engaging in similar unfair labor practices and to post an appropriate Notice signed by the Commanding Officer at the Respondent's facility. I conclude that the requested order is appropriate to remedy the unfair labor practice found herein. Accordingly, it is recommended that the Authority issue the following:

ORDER

Pursuant to section 2423.29 of the Federal Labor Relations Authority's Rules and Regulations and section 7118 of the Statute, the Marine Corps Logistics Base, Barstow, California, shall:

1. Cease and desist from:

(a) Conducting formal discussions with bargaining unit employees represented by the American Federation of Government Employees, Local 1482, AFL-CIO, the agent of the employees' exclusive bargaining representative, without first notifying the Union and affording it the opportunity to be represented at such formal discussions, concerning any grievance or any personnel policy or practices or other general condition of employment, including meetings at which formal EEO complaints are resolved.

(b) In any like or related manner interfering with, restraining or coercing its employees in the exercise of rights assured them by the Federal Service Labor-Management Relations Statute.

2. Take the following affirmative action in order to effectuate the purposes and policies of the Federal Service Labor-Management Relations Statute:

(a) Post at its facility in Barstow, California, copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the Commanding Officer and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that such Notices are not altered, defaced, or covered by any other material.

(b) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director of the San Francisco Regional Office, Federal Labor Relations Authority, in writing, within 10 days from the date of this Order, as to what steps have been taken to comply.

Issued, Washington, D.C., March 1, 1996

SAMUEL A. CHAITOVITZ

Chief Administrative Law Judge

NOTICE TO ALL EMPLOYEES

POSTED BY ORDER OF THE

FEDERAL LABOR RELATIONS AUTHORITY

The Federal Labor Relations Authority has found that the Marine Corps Logistics Base, Barstow, California violated the Federal Service Labor-Management Relations Statute and has ordered us to post and abide by this notice.

We hereby notify our employees that:

WE WILL NOT conduct formal discussions with bargaining unit employees represented by the American Federation of Government Employees, Local 1482, AFL-CIO, the agent of our employees' exclusive bargaining representative, without first notifying the Union and affording it the opportunity to be represented at such formal discussions concerning any grievance or any personnel policy or practices or other general condition of employment, including meetings at which formal EEO complaints are resolved.

WE WILL NOT in any like or related manner interfere with, restrain or coerce our employees in the exercise of rights assured them by the Federal Service Labor-Management Relations Statute.

___________________________
(Agency)

Dated: _____________ By: _____________________________

(Signature) (Title)

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 provisions, they may communicate directly with the Regional Director, San Francisco Region, Federal Labor Relations Authority, whose address is: 901 Market Street, Suite 220, San Francisco, California 94103, and whose telephone number is: (415) 744-4000.




FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

1. Section 2429.27(b) provides:

Service of any document or paper under this subchapter, by any party, including documents and papers served by one party on another, shall be made by certified mail or in person. A return post office receipt or other written receipt executed by the party or person served shall be proof of service.

2. The Respondent has its own internal mail system, referred to as "guard mail," for sending mail within the Marine Corps Logistics Base. Judge's Decision at 6.

3. The Judge also found that there was no dispute that the Union timely filed its charge with the Authority within 6 months of the alleged violation.

4. 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).

5. In its exceptions, the Respondent mistakenly cited DOT as U.S. Department of the Air Force, Headquarters, Oklahoma City Air Logistics Center, Tinker Air Force Base and American Federation of Government Employees, Local 916, 44 FLRA 921 (1992).

6. The Respondent did not except to the Judge's determinations that the meeting was a discussion, which was formal, between one or more representatives of the Respondent and a bargaining unit employee and that the Respondent did not afford the Union notice and an opportunity to be represented at the discussion.

7. We note that the parties and the Judge refer to section 2429.27(b) as prescribing how complaints are to be served. Unlike section 2429.12(a), which specifically addresses the manner in which complaints are to be served and is, therefore, the controlling regulation as to this matter, section 2429.27(b) is a general provision that sets forth the method of service of all documents or papers by parties (see note 1, supra).

8. The only exception to this 6-month requirement is set forth in section 7118(a)(4)(B) and is not applicable in this case.

9. We find that the Respondent's reliance on DOT is inapposite because that case did not concern service of unfair labor practice charges or complaints, but rather service of an agency head's disapproval of a collective bargaining agreement pursuant to section 7114(c) of the Statute. In light of the principles set forth above regarding the construction of procedural requirements concerning proof of service where no prejudice results, we leave for an appropriate case reexamination of whether the requirements of service of an agency head's disapproval of a collective bargaining agreement pursuant to section 7114(c) should be construed in the manner set forth in DOT.

10. To the contrary, the court recognized that violation of the antidiscrimination provisions of 42 U.S.C. § 2000e-16 may be raised under a negotiated grievance procedure. INS, 4 F.3d at 273 note 9.


ALJ's Footnotes Follow:

1. Lundstrom testified that he generally stays out of the EEO settlement process until the final stage of signing the agreement, preferring to have the parties work on settling EEO matters themselves, but that he participated in this instance at the request of both Baker and Smith.

2. Lundstrom testified that he, not Baker, determined the number of overtime hours to offer Leader, although he acknowledged that the offer was within the parameters set by Baker. He also testified that the offer of 68 hours of overtime was not based on a specific calculation, but rather was based on what Lundstrom thought the case was worth to settle.

3. While Lundstrom testified that Leader did not appear to be angry or upset, I credit Boyce's testimony to the contrary. Thus, Lundstrom's offer of 68 hours certainly would have come as an unpleasant surprise to Leader, who had originally been seeking 198 hours of overtime and who had heard Lundstrom speak in terms of 130 hours at the conclusion of the October 13 meeting--that is, the 170 hours of overtime that Brown actually worked minus the 40 hours of overtime that Leader worked during the same period. Moreover, I find that Boyce testified persuasively that he did not advise Leader to accept Lundstrom's offer of 68 hours because Leader would have become upset with him (Boyce).

4. While Lundstrom and Smith both remembered that Leader had proposed a specific dollar amount to settle the case, they were unable to recall what that amount was and could not refer to their notes taken at the meeting because those notes were destroyed after October 31. I credit Boyce's testimony that Leader's counter-offer was for precisely $3,724.50, which is the figure recorded by Boyce in his notes during the October 17 meeting and is the sum derived by multiplying the 130 hours of overtime by the "super rate" of $28.65 per hour.

5. Lundstrom testified that while Leader never expressly stated that the Respondent's offer of 68 hours was acceptable, it was his "feeling" that the parties were in agreement on that figure by the end of the October 17 meeting. Yet Lundstrom also admitted that the parties were in disagreement at that meeting over the number of hours and the rate per hour that Leader would receive, and that Lundstrom was to "go back and do some further looking into the amount per hour and the number of hours . . . ."

6. Lundstrom and Smith both testified that at the conclusion of the October 17 meeting, Boyce said to Lundstrom, "Tom, if we're going to settle this on the same grounds we're talking about, I don't think I need to attend any more meetings" and that Lundstrom replied, "Okay, if something changes, I'll let you know. If it stays the same, we'll just sign." Boyce denies that any such colloquy took place. I credit Boyce's version. Thus, at the end of the October 17 meeting, there was a substantial gap between what the Respondent had offered (68 hours at $20 per hour) and what Leader was willing to accept as a compromise (130 hours at $28.65 per hour). Accordingly, there was no meeting of the minds with respect to the basis for a settlement of Leader's EEO complaint, and therefore no reason for Boyce to indicate that it was unnecessary for him to attend any further meetings if the parties were to settle the matter on the grounds that had been discussed. Moreover, as Boyce testified, he was very interested in the final terms of settlement in Leader's case because there was another pending EEO case involving a different employee in the same division as Leader (MC-3) for whom Boyce was the personal representative. Accordingly, in my view, it would have been very unlikely for Boyce to express no further interest in Leader's case when the final amount of settlement had not yet been determined.

7. It is undisputed that if Leader wanted to resolve his EEO complaint without litigation, he had to meet with Lundstrom to discuss the terms of and to sign a settlement agreement.

8. According to the terms of the settlement agreement, Leader would receive a permanent, non-competitive position as a planner once the Business Plan was put into effect at MC-3; a step increase from 4 to 5; and a lump sum payment of 68 hours of overtime at the hourly rate of $28.65 rather than the $20 rate proffered by Lundstrom at the October 17 meeting.

9. In any event, as I read section 2429.27(b), the purpose for requiring service by certified mail or in person is to create a written proof of service in the event of a later dispute over the timeliness of such service. Thus, the second sentence of section 2429.27(b) states that "[a] return post office receipt or other written receipt executed by the party or person served shall be proof of service." Where no dispute exists that timely service was effectuated, the failure to serve by certified mail or to have any other written proof of service becomes irrelevant.

10. See Nuclear Regulatory Commission, 29 FLRA 660, 662 (1987)("An EEO complaint meets the definition of 'grievance' within the broad definition of that term in section 7103(a)(9) of the Statute and, therefore, under 7114(a)(2)(A)."); U.S. Department of Veterans Affairs, Washington, D.C., 48 FLRA 991, 1005 (1993)(same). See also U.S. Department of Justice, Bureau of Prisons, Federal Correctional Institution (Ray Brook, New York), 29 FLRA 584, 589-90 (1987), in which the Authority, adopting the D.C. Circuit's decision in NTEU v. FLRA, 774 F.2d 1181 (D.C. Cir. 1985) and rejecting the Ninth Circuit's decision in Internal Revenue Service, Fresno Service Center, Fresno, California, 706 F.2d 1019 (9th Cir. 1983), returned to its origi