54:0716(75)CA - - Luke AFB, AZ and AFGE, Local 1547 [ AFB = Air Force Base ] - - 1998 FLRAdec CA - - v54 p716



[ v54 p716 ]
54:0716(75)CA
The decision of the Authority follows:


54 FLRA No. 75

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

LUKE AIR FORCE BASE, ARIZONA

(Respondent)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 1547

(Charging Party)

DE-CA-50519

_____

DECISION AND ORDER

August 13, 1998

_____

Before the Authority: Phyllis N. Segal, Chair; Donald S.

Wasserman and Dale Cabaniss, Members.

I. Statement of the Case

This unfair labor practice case is before the Authority on exceptions to the attached decision of the Administrative Law Judge filed by the Respondent.

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 on January 19, 1995, without affording the Union adequate notice and an opportunity to be represented. The Judge found that the Respondent violated the Statute as alleged.

Upon consideration of the Judge's decision and the entire record, we adopt the Judge's findings, conclusions, and recommended Order, except as modified herein.

II. Background and Judge's Decision

The facts, set forth in detail in the Judge's decision, are briefly summarized here. A unit employee filed two formal Equal Employment Opportunity (EEO) complaints alleging that she had been retaliated against for having filed a previous EEO complaint against her former supervisor. The Respondent's commander referred the two complaints to the Office of Complaint Investigations (OCI) of the Department of Defense.(1) An investigator from OCI then scheduled a conference with the employee, who designated the Union president as her personal representative.

The initial objective of this conference, as explained by the OCI investigator in a January 5, 1995, memorandum to the employee, was to mediate a settlement between the employee and "a management official designated complete authority to adjust the complaint[s]." General Counsel Exhibit 2 at 2. Formal investigation of the employee's complaints would take place only if mediation failed: "Should mediation not lead to settlement, the formal investigation will begin with [the employee's] testimony immediately following mediation." Id. at 1.

Both the employee and the Union president, as the employee's personal representative, met with the OCI investigator on January 18, 1995. Also attending this meeting were an attorney from the Air Force Judge Advocate General's office, who had been assigned to represent the Respondent, and the employee's former supervisor. The parties attempted for several hours with the assistance of the OCI investigator to obtain a mediated settlement of the employee's complaints. They failed to do so, and the Respondent's representatives left the meeting toward the end of the day. The OCI investigator then set up her computer and began transcribing the employee's statement. The Union president left before the employee completed her statement and before there was any discussion of the need for the OCI investigator and the employee to meet again. The OCI investigator later told the employee that they would meet again the following day, January 19.

The Union president was not notified of the January 19 meeting, and did not attend. The Respondent's chief EEO counselor was present at this meeting, and at an early point either she or the attorney from the Judge Advocate General's office presented the employee with a proposed settlement agreement. The agreement then became the topic of the meeting. The chief EEO counselor was "in and out of the room" relaying the employee's position to the Judge Advocate General attorney and returning to present the Respondent's position to the employee. See Transcript at 125-26, 130-31, 195-99, 233-35, 260-67. After some discussion in that manner, the agreement was modified, and the employee signed it.

The Judge found that the Respondent violated section 7116(a)(1) and (8) of the Statute by conducting a meeting on January 19 with the employee that was a discussion, which was formal, between one or more representatives of the Respondent and a bargaining unit employee concerning her formal EEO complaints. He also found that the Respondent failed to provide the Union notice and an opportunity to be represented at the discussion, as required by section 7114(a)(2)(A). The Judge found no merit to the Respondent's argument that, based on the decision of the U.S. Court of Appeals for the Ninth Circuit in Internal Revenue Service, Fresno Service Center v. FLRA, 706 F.2d 1019 (9th Cir. 1983) (IRS, Fresno), the employee's EEO complaints were not "grievances" under the Statute. He found that IRS, Fresno addressed only informal EEO complaints, not formal complaints such as those in this case.

Further, the Judge found no merit to the Respondent's argument that the employee's right to settle an EEO complaint outweighed the Union's right to be represented at the settlement. He found that argument amounted to "weighing an employee's right to settle a grievance with the Union's right to represent the unit employees" and "would, in effect, strike § 7114(a)(2)(A) from the Statute." Judge's Decision at 11.

The Judge rejected the Respondent's argument that section 574 of the Alternative Dispute Resolution Act (5 U.S.C. § 571, et seq.) (ADR Act) precluded the attendance of the Union at the settlement discussions of the formal EEO complaints. He found that the OCI investigator was not a neutral mediator, as envisioned by the ADR Act, and that, in any event, "nothing in the [ADR Act] forbids the Union from being present at the settlement discussions or when settlement was reached." Id. at 12. He similarly found that nothing in the regulations or Equal Employment Opportunity Commission (EEOC) management directives governing OCI investigations forbade the Union from being present at settlement discussions of formal EEO complaints.(2)

Under these circumstances, the Judge concluded that the Respondent violated section 7116(a)(1) and (8) of the Statute. As a remedy, he recommended an order directing the Respondent to give the Union advance notice and an opportunity to be represented at "formal discussions with bargaining unit employees concerning mediation or investigation of formal EEO complaints." Id. at 13. He also recommended that the Respondent post a notice to all employees.

III. Positions of the Parties

A. The Respondent

The Respondent acknowledges that, "Under Authority law, the terms 'meeting' and 'discussion', are synonymous." Exceptions at 5. It contends, however, that the January 18 and 19 meeting between the employee and the OCI investigator constituted a "two day informal mediation session" rather than a formal discussion. Id. at 4.

In the Respondent's view, this "mediation session" was informal for several reasons. First, the Respondent asserts that "only the employee's first level supervisor attended].]" Id. at 5. Second, Respondent asserts that the attorney from the Judge Advocate General's office, whom the Respondent does acknowledge as its representative, was present at the January 18 meeting but was "not in the employee's supervisory chain." Id. In this regard, the Respondent asserts that on January 18 the parties "were together only a portion of the time, with the mediator [the OCI investigator] spending a large portion of the time talking with each side individually in caucuses." Id. Third, the Respondent asserts that the meeting took place in a room across the hall from the office of the Respondent's chief EEO counselor - "a neutral location outside of the employee's work area." Id. Fourth, the Respondent asserts that the "mediation process" lasted seven and a half hours over a two day period. Id.

Fifth, the Respondent asserts that the meeting was called by the OCI investigator "as part of her handling of the case." Id. Sixth, the Respondent asserts that the "mediation" had no formal agenda and no notes were taken. Id. Seventh, the Respondent asserts that the "mediation" was conducted by mutual consent and was confidential. Id.

The Respondent again invokes, as it did before the Judge, the decision of the Ninth Circuit in IRS, Fresno to argue that meetings may be found informal when the "regulatory framework" of the EEOC characterizes them that way. Exceptions at 6. The Respondent claims that the Authority reached this same result in Social Security Administration and Social Security Administration, Field Operations, New York Region, 16 FLRA 1021 (1984) (SSA).

The Respondent excepts to the Judge's determination that the OCI investigator and the Respondent's chief EEO counselor were representatives of management. In its view, the evidence shows that OCI investigators are employees of the Department of Defense and not agents of the installations (such as the Respondent) where they conduct their investigations. The Respondent asserts that the chief EEO counselor is forbidden by the Federal Sector Complaints Processing Manual, EEO Management Directive 110 (EEO MD 110) from serving as an agency representative and is instead "neutral by law."(3) Exceptions at 14. According to the Respondent, its only representative was the Judge Advocate General attorney who signed the settlement agreement, but who was "not in the employee's supervisory chain." Id. at 5.

The Respondent contends that the employee's EEO complaints were not "grievances" within the meaning of section 7114(a)(2)(A) of the Statute. It further asserts that "[t]he EEO complaint process is specifically excluded from the parties' collective bargaining agreement." Exceptions at 9. According to the Respondent, the Union had no right to be present at the "mediation" in this case because that mediation affected only the employee herself, not the bargaining unit as a whole. Id. at 9.

Further, the Respondent contends that EEOC regulations make no provision for the presence of an exclusive representative during the processing and settlement of EEO complaints. It asserts that the D.C. Circuit has held that the rights of a complainant outweigh the rights of an exclusive representative where a conflict exists between the two,(4) and that the Authority has also recognized "the supremacy of the EEO complainant's position." Id. at 10. According to the Respondent, the Authority is entitled to no "deference in interpreting the law involving the processing of individual EEO complaints[,]" inasmuch as all authority for doing so rests with the EEOC. Id.

Finally, the Respondent contends that mediation procedures under the ADR Act are intended to be confidential. According to the Respondent, "[w]hen a third party such as a union which has no business at an [sic] mediation . . . is present, confidentiality of the process will be violated." Id. at 11. The Respondent argues that "there is no requirement to disclose confidential information such as an EEO settlement agreement to a third party without the consent of the complainant," and maintains that the Authority so held in Federal Aviation Administration, New York TRACON, Westbury, New York, 51 FLRA 115 (1995) (TRACON).(5)

B. The General Counsel

The General Counsel principally emphasizes that this case concerns a formal rather than an informal EEO complaint, and contends that important distinctions -- relating chiefly to the confidentiality of the proceedings -- exist between the two types of complaints. The General Counsel contends that the Judge correctly distinguished the Ninth Circuit's decision in IRS, Fresno, which involved an informal EEO complaint, from this case, which involved a formal complaint. The General Counsel adds that, similarly, EEOC's own regulations establish different rules concerning the settlement of "EEO matters during the precomplaint stage as compared to those matters advanced to the formal stage." Opposition at 5.

The General Counsel also maintains that the Union's right to be present at the settlement of the employee's EEO complaints exists independently of whether the ultimate settlement agreement had any effect on other unit employees, and contends that "the record clearly reflects that the settlement discussions which preceded [the agreement] involved topics with potential impact on other employees." Id. at 8.

The General Counsel argues that both the OCI investigator and the Respondent's chief EEO counselor, as well as the Judge Advocate General attorney, were agents of the Respondent. According to the General Counsel, the Respondent had, in effect, contracted with OCI for the investigation of EEO complaints filed by the Respondent's employees. The General Counsel asserts that "the Authority has found that even a contractor functions as a 'representative of the agency' when that contractor conducts the agency's business." Id. at 9, quoting from Defense Logistics Agency, Defense Depot Tracy, Tracy, California, 39 FLRA 999, 1013 (1991). The General Counsel maintains that, like the OCI investigator and the Judge Advocate General attorney, the Respondent's chief EEO counselor was also "conducting the Respondent's business by her actions during the meeting[.]" Opposition at 10.

IV. Analysis and Conclusions

The January 18 and January 19 sessions were arranged by the OCI investigator to mediate and, if necessary, investigate the employee's EEO complaints. The Union president was present at the January 18 mediation/investigation session, attending as the employee's personal representative. See Judge's Decision at 4. The Agency did not provide the Union notice and an opportunity to be represented at the January 19 mediation/investigation session. The complaint concerns only the January 19 session. For the following reasons, we conclude that the January 19 mediation/investigation session of the EEO complaints was a "formal discussion" within the meaning of section 7114(a)(2)(A) of the Statute and, therefore, that the Respondent violated section 7116(a)(1) and (8) of the Statute by failing to provide the Union notice and an opportunity to be represented at that mediation/investigation session.(6)

A. The January 19 Mediation/Investigation Session of the EEO Complaints Constituted a "Formal Discussion" Within the Meaning of Section 7114(a)(2)(A) of the Statute

In order for a union to have the right to representation under section 7114(a)(2)(A), all the elements of that section must exist. There must be: (1) a discussion; (2) which is formal; (3) between one or more representatives of the agency and one or more unit employees or their representatives; (4) concerning any grievance or any personnel policy or practice or other general condition of employment. General Services Administration, Region 9 and American Federation of Government Employees, Council 236, 48 FLRA 1348, 1354 (1994) (GSA I).

1. The January 19 Mediation/Investigation Session of the EEO Complaints Was a Discussion

It is undisputed that the Respondent engaged in a "discussion" with the employee about her EEO complaints, within the meaning of section 7114(a)(2)(A), and, thus, we will not address this requirement. However, the Respondent argues that this discussion was not "formal" and concerned neither a "grievance" within the meaning of the Statute nor a matter affecting other unit employees. The Respondent additionally argues that neither the OCI investigator nor its chief EEO counselor were "representatives of the agency" for purposes of section 7114(a)(2)(A).

2. The January 19 Mediation/Investigation Session of the EEO Complaints Was Formal

In GSA I, the Authority held that:

In determining whether a discussion is formal within the meaning of section 7114(a)(2)(A), [the Authority has] advised that the totality of the circumstances presented must be examined, but that a number of factors are relevant: (1) the status of the individual who held the discussions; (2) whether any other management representatives attended; (3) the site of the discussions; (4) how the meetings for the discussions were called; (5) how long the discussions lasted; (6) whether a formal agenda was established for the discussions; and (7) the manner in which the discussions were conducted.

GSA I, 48 FLRA at 1355. These factors are illustrative, and other factors may be identified and applied as appropriate in a particular case. See F.E. Warren Air Force Base, Cheyenne, Wyoming, 52 FLRA 149, 157 (1996) (Warren). Therefore, in determining formality, the Authority considers the totality of the facts and circumstances. Id.

The OCI investigator presided at, and the chief EEO counselor facilitated, the January 19 mediation/investigation session of the EEO complaints. The Respondent disputes the Judge's finding that the OCI investigator and the chief EEO counselor were agents of management on January 19. It asserts that the chief EEO counselor is a "neutral." However, the Respondent does not deny that management was represented at all times by an attorney from the Judge Advocate General's office. The Judge Advocate General attorney participated in the initial settlement discussions of January 18 as well as on January 19. In addition, the Judge Advocate General attorney ultimately drafted and signed the agreement with the employee on January 19. See Exceptions at 4.

In view of the concession by the Respondent that management was represented at all times by an attorney from the Judge Advocate General's office, we, therefore, find it unnecessary to address, and do not adopt, the Judge's findings that the OCI investigator and the chief EEO counselor are also "representatives" of the Agency within the meaning of section 7114(a)(2)(A) of the Statute. Similarly, we do not address the Respondent's contention that the chief EEO counselor is a "neutral." In addition, we do not address the Respondent's contention that the OCI investigator is not a representative of the Agency because of her organizational location.

The Respondent argues that since the Judge Advocate General attorney was not the employee's first level supervisor, the mediation session was not attended by an Agency representative of the sort that would indicate a "formal" meeting. Although there is no doubt that she was not the employee's first level supervisor, it is clear that the Judge Advocate General attorney represented a high level of management. The Judge identified the attorney as "the Chief of Civil Law" in the Judge Advocate General's office. Judge's Decision at 2. The attorney identified herself at the hearing as "chief of adverse actions." Transcript at 120.

In an attempt to support its contention of "informality," the Respondent describes the back and forth nature of the mediation/investigation session. The record does not show that the Judge Advocate General attorney was physically present at the January 19 mediation/investigation session with the employee, and the Judge made no finding as to that point. The attorney testified that she was never in the room with the employee on that day. See Transcript at 125. The employee testified that she remembered that the attorney brought the proposed settlement agreement into the room but "didn't say a word to anybody" and then left. Id. at 76.

Although the evidence is inconclusive that the employee and the Judge Advocate General attorney ever spoke directly to each other on January 19, they communicated extensively through the chief EEO counselor. The record shows that at that mediation/investigation session, the chief EEO counselor was "in and out of the room" relaying the employee's position regarding a proposed settlement agreement to the Judge Advocate General attorney and returning to present the Respondent's position to the employee. See Transcript at 125-26, 130-31, 195-99, 233-35, 260-67. Moreover, this process ultimately produced a settlement agreement signed by the Judge Advocate General attorney.

Even if they were communicating exclusively through the chief EEO counselor, it is clear that both the employee and the Judge Advocate General attorney were engaged in responding to each other's settlement positions, and that they were no less engaged than if they had been speaking face-to-face -- as they had been speaking the previous day.(7) A normal mediation technique is to have people in different rooms with someone going back and forth conducting the negotiation. The Union's interest and right to be represented at face-to-face negotiations of a grievance, see, e.g., GSA I, 48 FLRA at 1355-56, applies as well, in our view, to a negotiation conducted through a mediator. Under these circumstances, the Judge Advocate General attorney was effectively present at the January 19 mediation/investigation session. Thus, the nature of the communication during the mediation/investigation session on January 19 does not undermine the overall formality. See, e.g., Veterans Administration Medical Center, Long Beach California, 41 FLRA 1370, 1379-80 (1991), (VAMC, Long Beach), enforced, 16 F.3d 1526 (9th Cir. 1994) (an interview conducted by telephone was "formal" within the meaning of section 7114(a)(2)(A)).

The fact that the January 19 mediation/investigation session of the EEO complaints took place outside of the employee's work area indicates that it was formal. The Judge found that it took place "a mile or more away from [the employee's] work site." Judge's Decision at 10. The Respondent does not dispute this finding, but describes the meeting site as "a neutral location outside of the employee's work area." Exceptions at 5. Meetings held outside an employee's immediate work area are associated with formality, while those held in the work area are not. See, e.g., Marine Corps Logistics Base, Barstow, California, 45 FLRA 1332, 1335-36 (1992) (Marine Corps Logistics Base) (shop floor discussion not formal); U.S. Department of Defense, Defense Logistics Agency, Defense Depot Tracy, Tracy, California, 37 FLRA 952 (1990) (meeting held in employee lunchroom formal); Department of Health and Human Services, Social Security Administration and Social Security Administration Field Operations, Region II, 29 FLRA 1205, 1216 (1987) (meeting at supervisor's desk near employee's seat assignment not formal). In view of the fact that the mediation/investigation session was held on the Respondent's premises, it is not clear whether it is properly characterized as having been at a "neutral location," as the Respondent maintains. In any event, even if this location were viewed as "neutral," it does not outweigh the fact that it was an Agency location outside the employee's immediate work area.

The length of the January 19 mediation/investigation session of the EEO complaints similarly indicates that it was formal. The Judge found that the January 19 mediation/investigation session culminating in the settlement agreement lasted three hours. See Judge's Decision at 10. As the Respondent describes it, "[t]he mediation process lasted over a two day period covering a period of seven and a half hours." Exceptions at 5. The Respondent presents no basis, and none is apparent given all the other evidence in the case, for describing a three hour mediation/investigation session --much less a seven and one half hour session extending over two days -- as impromptu or spontaneous.

The record shows that an agenda was established for the January 18 and January 19 mediation/investigation sessions of the EEO complaints. The Judge found that "there clearly was a pre-established agenda for the meeting." Judge's Decision at 10. The Respondent asserts that "there was no formal agenda for the informal mediation session." Exceptions at 3, 5. The Authority has relied on a variety of evidence to conclude that a particular meeting had or did not have an "agenda." See, e.g., Warren, 52 FLRA at 159 (message received by one military command from another found to be agenda for formal discussion); Marine Corps Logistics Base, 45 FLRA at 1336 (no agenda where supervisor "thought through his plans for the meeting," but did so only five or ten minutes in advance); Veterans Administration, Washington, D.C. and VA Medical Center, Brockton Division, Brockton, Massachusetts, 37 FLRA 747, 754 (1990) (agenda found where supervisor distributed old and new shift schedules and asked employees to choose new shifts).

Although the Judge does not say precisely what he found to be the "agenda" in this case, the record shows that the OCI investigator sent the employee a memorandum some two weeks prior to the mediation/investigation session. This memorandum referred to the issues in the employee's complaints, explained the general plan of the meeting, and laid out certain ground rules. See General Counsel Exhibit 2. The investigator sent a copy of this memorandum to the Respondent's chief EEO counselor. See Respondent Exhibit 12. To the extent that the OCI investigator's memorandum shows that the mediation/investigation session to discuss the employee's EEO complaints was planned in advance and had a set of clearly-defined objectives and procedures that were communicated to all the participants, we find that this memorandum was an "agenda" for the mediation/investigation session.

Although the employee's attendance may not have been mandatory in the sense that she could face discipline for refusing to meet with the OCI investigator, the evidence shows that she had reasonable grounds to conclude that her complaints could be adversely affected if she did not attend. The Judge found that the employee "considered the meeting to be mandatory." Judge's Decision at 4, 10.(8) The Respondent contends that "[t]he meeting was conducted by mutual consent[,]" presumably meaning that it was voluntary. Exceptions at 5. The OCI investigator testified that the employee's attendance was "not mandatory" and that she had never heard of a complainant being disciplined for refusing to speak with an OCI investigator. Transcript at 168-69. However, the OCI investigator's memorandum to the employee, discussed above, states that "[f]ailure to cooperate in the investigation . . . will not stop the investigation. It will, however, result in recommendations based on available information and may be the basis for an adverse inference concerning the position of the nonresponding party." General Counsel Exhibit 2 at 2. Based on this, we find that attendance by the employee at the January 19 mediation/investigation session of the EEO complaints was, in effect, mandatory. Nevertheless, even if attendance were not mandatory, the other indicia of formality support our conclusion that the session on January 19 was a formal discussion. See, Warren, 52 FLRA at 159.

The Judge found that "the meeting resulted in a signed settlement agreement[,] reflecting the results of the meeting." Judge's Decision at 10. The Respondent asserts merely that "no notes [were] taken." Exceptions at 5. The record does not indicate that anyone took notes or minutes during the actual settlement on January 19, but it is unclear whether notes or minutes would have been expected. In her memorandum to the employee, the OCI investigator stated that "[t]he entire mediation conference is confidential, except for information which I would be required to report by law[,]" and "[a]side from minimal notes and the actual [settlement] agreement, if any, no report or testimony unique to the mediation conference will be included in the discrimination complaint file." General Counsel Exhibit 2 at 2. To the extent that the initial focus of the January 19 mediation/investigation session had shifted from mediation to investigation, however, the record shows that the OCI investigator was in the process of transcribing the employee's statement into her computer when the Respondent presented its settlement offer.

On balance, and considering the totality of the facts and circumstances, we are persuaded that the evidence supports the Judge's conclusion that the January 19 mediation/investigation session of the EEO complaints was a "formal discussion" within the meaning of section 7114(a)(2)(A). See, e.g., GSA I, 48 FLRA at 1355-56 (settlement negotiations of an appeal to the Merit Systems Protection Board between an agency and the employee and her private attorney constituted formal discussions within the meaning of section 7114(a)(2)(A) of the Statute).

The Respondent's reliance on the Authority's decision in SSA, 16 FLRA at 1033-34, is misplaced. In SSA, the Authority adopted a Judge's conclusion that meetings to settle an EEO complaint were not formal. In that case, the Judge viewed as dispositive that the presiding official was a facilitator, attendance was not mandatory, and the manner of the discussion was not confrontational. As explained above, for the purpose of determining whether the discussion was formal, we view the January 19th session as, in effect, mandatory. In any event, to the extent that SSA implies that a facilitated discussion in general, or a mediated negotiation in particular, can never be "formal" under section 7114(a)(2)(A) of the Statute, we reject that conclusion. In our view, a union's statutory right to notice and an opportunity to be present during a discussion is not diminished when the discussion between employees and agency representatives is conducted in a nonconfrontational manner through a neutral third party. SSA will no longer be followed to the extent it implies that a discussion conducted in this way will never be found "formal" within the meaning of the Statute. We will continue to look at the totality of the circumstances in determining whether a discussion is formal.

We also reject the Respondent's reliance on the Ninth Circuit's decision in IRS, Fresno to support its position that meetings may be found informal when the "regulatory framework" of the EEOC characterizes them that way. Exceptions at 6. The Authority's decision in Marine Corps Logistics Base, Barstow, California, 52 FLRA 1039 (1997) (Barstow) issued after the Judge's decision in this case. In Barstow, the Authority concluded that a meeting, at which management presented an employee with a proposed settlement agreement of a formal EEO complaint, was a formal discussion of a grievance that the union should have been permitted to attend. In reaching this conclusion, the Authority pointed to its earlier decision in 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) (Ray Brook). In Ray Brook, the Authority decided to follow the reasoning of the D.C. Circuit in NTEU over that of the Ninth Circuit in IRS, Fresno and held that a grievance within the meaning of section 7114(a)(2)(A) can encompass a statutory appeal. For the reasons stated in Barstow, we reject the Respondent's reliance on IRS, Fresno.

3. The January 19 Mediation/Investigation Session of the EEO Complaints Was Between a Representative of the Agency and a Unit Employee

As noted, the Respondent concedes that the attorney from the Judge Advocate General's Office was its representative and had settlement authority for purposes of this case. Exceptions at 5. The Respondent asserts that the Judge Advocate General attorney was not a supervisor of the employee. However, nothing in section 7114(a)(2)(A) of the Statute requires that a "representative" be a supervisor. Cf. VAMC, Long Beach, California, 41 FLRA at 1379 (undisputed that respondent's attorney who conducted telephone interview was respondent's representative); and Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, 39 FLRA 298, 311-12 (1991) (finding respondent "responsible for the acts and conduct of its agent, regardless of the organizational location of its agent"). Thus, we conclude that the January 19 mediation/investigation session of the EEO complaints was between a "representative" of the Agency and a unit employee within the meaning of section 7114(a)(2)(A) of the Statute.

4. The January 19 Mediation/Investigation Session of the EEO Complaints Concerned a Grievance

The Judge correctly concluded that the formal EEO complaints filed by the employee constituted a "grievance" within the meaning of section 7114(a)(2)(A). See Barstow, 52 FLRA at 1045-46. We reject the Respondent's assertion that section 7114(a)(2)(A) cannot recognize as a "grievance" any matter that the parties have excluded from their own negotiated grievance procedure. The statutory definition of a grievance is not dependent on the scope of a negotiated grievance procedure. Agencies and unions remain free to exclude from their grievance procedures any matters they choose. This does not preclude matters they exclude from their grievance procedures from being "grievances" under the Statute if they otherwise meet the elements of section 7103(a)(9).(9)

The Respondent's argument that the Union had no right to be present at the "mediation" in this case because that mediation affected only the employee herself, not the bargaining unit as a whole, is also misplaced. Exceptions at 9. Section 7114(a)(2)(A) does not require that a "grievance" manifest some effect on other employees in the bargaining unit before it may become the subject of a formal discussion. See, e.g., Barstow, 52 FLRA at 1045-46; Department of the Navy, Charleston Naval Shipyard, Charleston, South Carolina, 32 FLRA 222, 230 (1988) ("[S]ection 7114(a)(2)(A) requires that a formal discussion be connected with a grievance of a bargaining unit employee or with any personnel policy or practices or other general conditions of employment affecting bargaining unit employees."). The Authority's determinations under section 7114(a)(2)(A) are "guided by that section's intent and purpose--to provide the union with an opportunity to safeguard its interests and the interests of employees in the bargaining unit--viewed in the context of a union's full range of responsibilities under the Statute." Ray Brook, 29 FLRA at 589.

Nevertheless, we conclude that the grievance did affect the bargaining unit as a whole. This conclusion is supported by testimony from the employee and from the Respondent's own witnesses about the employee's concern that she not be placed in a job for which other employees may have been competing. See, e.g., Transcript at 205-06, 232, 237. The Respondent concedes that the employee herself insisted on modifying the proposed settlement agreement to provide that it would have no "impact" on other bargaining unit positions. See Exceptions at 12. The Respondent consented to this modification and created a new position for the employee. Its present argument that the settlement discussions had no effect on other unit employees because the discussions resulted in an agreement that other employees would not be affected is without merit. For example, the allocation of a position to the employee would necessarily deprive other employees from bidding on that position.

B. The Presence of a Union Representative at the January 19 Mediation/Investigation Session of the EEO Complaints Would Not Conflict With EEOC Regulations or the ADR Act

1. EEOC regulations

As the General Counsel points out, the Respondent does not contend that 29 C.F.R. Part 1614 and EEO MD 110 actually prohibit the presence of a union representative at the formal discussion of an employee's EEO complaint. Rather, the Respondent asserts only that those regulations do not provide for the union's presence: "[n]owhere in 29 C.F.R. Part 1614 does that regulation allow for the exclusive representative's presence, unless the exclusive representative is the complainant's designated representative." Exceptions at 9. The fact that 29 C.F.R. Part 1614 does not mention the right of a union to be present at a formal discussion of an EEO complaint does not mean that the union's presence is forbidden or that that regulation necessarily conflicts with the protections of the Statute. Cf. Barstow, 52 FLRA at 1046. Indeed, the Respondent points to no such conflict in this case. The Respondent does assert that the Authority is not "entitled to deference in interpreting the law involving the processing of individual EEO complaints." Exceptions at 10. However, in the absence of any apparent inconsistency between section 7114(a)(2)(A) of the Statute and "the law involving the processing of individual EEO complaints[,]" nothing in this case requires the Authority to make such an interpretation. Id. Further, because we find no conflict between the EEOC regulations and the Statute, it is not necessary to determine whether those regulations would trump the Statute in general, or section 7114(a)(2)(A) in particular.

The Respondent also relies on dictum by the D.C. Circuit in NTEU, 774 F.2d at 1189, that Congress has explicitly decided that a conflict between the rights of identifiable victims of discrimination and the interests of the bargaining unit must be resolved in favor of the former. Again, however, the Respondent identifies no conflict between the rights of the employee in this case and those of the Union or the rest of the bargaining unit. In particular, it does not dispute the Judge's finding that the employee not only never objected to the Union president's presence at the settlement discussions but, "[o]n the contrary, she had wanted him to be present." Judge's Decision at 5, n.5.(10)

2. Administrative Dispute Resolution Act

Section 574 of the ADR Act, titled "Confidentiality," deals with circumstances under which certain communications made during dispute resolution proceedings may not be disclosed by the parties or by the neutral outside those proceedings. An exclusive representative that is a "party" to the proceedings would presumably be bound by the nondisclosure provisions of 5 U.S.C. § 574. The focus of section 574 of the ADR Act is on the protection of the confidentiality of alternate dispute resolution proceedings and not on who may attend such proceedings. Thus, the mere presence of a union representative at a dispute resolution proceeding where all the elements of section 7114(a)(2)(A) were met, in and of itself, would not conflict with those provisions of the ADR Act. Further, because we find no conflict between the ADR Act and the Statute, we need not determine whether the ADR Act, if applicable, would trump the Statute in general, or section 7114(a)(2)(A) in particular.

The Respondent's reliance on such cases as TRACON, 51 FLRA 115, in which the Authority found that the Privacy Act precluded the disclosure of an EEO settlement agreement, is misplaced. In contrast to those cases, the Union here has not requested any information and the Respondent has not been charged with refusing to provide any. Further, the fact that section 7114(b)(4) may not require an agency to disclose an EEO settlement agreement to a union does not mean that a union has no right under section 7114(a)(2)(A) to attend the formal discussion of an EEO complaint, whether that discussion results in a settlement agreement or not.

Accordingly, we find that the Respondent has failed to demonstrate that either EEOC regulations or the ADR Act conflicts with section 7114(a)(2)(A) of the Statute or otherwise precludes the Union's right to be represented at the discussion in this case.

C. Summary

In sum, we find that the January 19 mediation/investigation session of the EEO complaints was a discussion, which was formal, between a representative of the Respondent and a bargaining unit employee concerning a grievance, within the meaning of section 7114(a)(2)(A) of the Statute. In addition, we find that the Respondent has failed to establish that the presence of a Union representative at the mediation/investigation session would conflict with EEOC regulations or the ADR Act. 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 2423.41(c) of the Authority's Regulations and Section 7118 of the Federal Service Labor-Management Relations Statute,(11) Luke Air Force Base, Arizona shall:

1. Cease and desist from:

(a) Failing or refusing to provide the American

Federation of Government Employees, Local 1547 advance notice and the opportunity to be represented at formal discussions with bargaining unit employees concerning any grievance or any personnel policy or practices or other general conditions of employment, including meetings to mediate settlement negotiations pertaining to formal EEO complaints.

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

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

(a) Provide the American Federation of Government Employees, Local 1547, advance notice and the opportunity to be represented at formal discussions with bargaining unit employees concerning mediation of formal EEO complaints.

(b) Post at Luke Air Force Base, Arizona copies of the attached Notice to All Employees on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of the forms, they shall be signed by the Commander, Luke Air Force Base, and they shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken to ensure that such Notices are not altered, defaced, or covered.

(c) Pursuant to Section 2423.41(e) of the Authority's Regulations, notify the Regional Director of the Denver Region, 1244 Speer Boulevard, Suite 100, Denver Colorado 80204-3581, 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 Department of the Air Force, Luke Air Force Base, Arizona has 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 fail or refuse to provide the employees' exclusive representative, the American Federation of Government Employees, Local 1547 (the Union), advance notice and the opportunity to be represented at formal discussions with bargaining unit employees concerning any grievance or any personnel policy or practices or other general conditions of employment, including meetings to mediate settlement negotiations pertaining to formal EEO complaints filed by bargaining unit employees.

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

WE WILL, provide the Union advanced notice and the opportunity to be represented at formal discussions with bargaining unit employees concerning mediation of formal EEO complaints.

_____________________________

(Activity)

Date:__________ 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 provision, they may communicate directly with the Regional Director, Denver Region, 1244 Speer Boulevard, Suite 100, Denver, Colorado, 80204-3581, and whose telephone number is: (303) 844-5224.




UNITED STATES OF AMERICA

FEDERAL LABOR RELATIONS AUTHORITY

OFFICE OF ADMINISTRATIVE LAW JUDGES

WASHINGTON, D.C. 20424-0001

LUKE AIR FORCE BASE, ARIZONA

Respondent

and

AMERICAN FEDERATION OF GOVERNMENT

EMPLOYEES, LOCAL 1547

Charging Party

Case No. DE-CA-50519

Major Michael Wells, Esq.

Phillip G. Tidmore, Esq.

For the Respondent

Paul King, President

For the Charging Party

Bruce Conant, Esq.

For the General Counsel

of the FLRA

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, as amended, filed by the Charging Party, American Federation of Government Employees (AFGE), Local 1547 (AFGE Local 1547 or Union) against Luke Air Force Base, Arizona (Luke AFB or 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 Denver Region of the FLRA. The complaint alleges that Luke AFB violated § 7116(a)(1) and (8) of the Statute when it held an allegedly formal discussion with a bargaining unit employee on January 19, 1995, without affording the Union adequate notice and the opportunity to be represented. Luke AFB filed an answer denying the violations alleged in the complaint.

A hearing was held in Phoenix, Arizona, at which all parties were afforded a full-opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence. The Respondent and the GC of the FLRA 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

AFGE Local 1547 is the exclusive representative of a bargaining unit of employees of Luke AFB. Tillie Cano is a member of the Union's bargaining unit, but is not and has not been a member of the Union. Paul King is the President of the Union.

Cano's immediate supervisor, at certain material times, was Lt. Col. Priscilla Pelletier. Davene Harris is Luke AFB's Chief EEO Counselor and Captain Renee Bennett is an attorney at Luke AFB and the Chief of Civil Law in the office of the Staff Judge Advocate General.

Cano filed an informal EEO complaint against Pelletier in 1994. After receiving counseling at the informal stage, Cano filed a formal EEO complaint in April 1994. The complaint was accepted by Respondent for investigation and an investigation by correspondence was conducted at Respondent's request by the Department of Defense's Office of Complaint Investigations (OCI). That investigation ultimately resulted in a recommendation to Luke AFB, received shortly before the discussion that is the subject of this case, that no discrimination be found.

B. Cano's Formal EEO Complaints

Subsequent to the filing of the initial EEO complaint, Cano filed allegations of reprisal for her EEO activities which, after counseling at the informal stage, resulted in two additional formal EEO complaints. These were accepted by Luke AFB for investigation and again OCI was requested to conduct that investigation for the base.

1. EEO Procedure; OCI and OCI Investigator Sheila Johnson

Under the Federal Sector Equal Employment Opportunity program (29 C.F.R. Part 1614), agencies are responsible for investigating complaints filed against them by their employees 29 C.F.R. § 1614.108(a). Prior to the filing of a formal complaint, EEO regulations provide that employees are to receive counseling concerning their grievances and the possibilities of informal resolution are to be explored. During this counseling stage, strict rules concerning confidentiality are enforced and even the name of the aggrieved employee cannot be revealed by the counselor without permission. The EEO counselor is required to inform the aggrieved employee of his or her right to file a formal complaint of discrimination, including explaining that once the complaint reaches the formal stage, confidentiality may be lost. In fact, "going formal" with the complaint may be understood as "going public" with it.

Within the Department of Defense, the formal EEO complaint investigation function has been consolidated and is now performed by its OCI, which is part of its Civilian Personnel Management Service. OCI Discrimination Complaints Investigator Sheila Johnson, who investigated Cano's formal EEO complaints at the request of Luke AFB, is assigned to Department of Defense's Sacramento, California, OCI office. EEOC Management Directives, EEO MD-110, which provides guidance to OCI, provide that an agency may contract out an investigation or may arrange for another agency to conduct the investigation, but remains responsible for the content and timeliness of that investigation.(1) EEO, MD-110, p. 4-9; 29 C.F.R. § 1614.108.

OCI provides different services and report formats to different OCI "customers", depending on their requests. In addition to the investigation of EEO complaints, OCI investigators utilize mediation in appropriate cases in their attempts to assist the parties in resolving cases.

2. Processing Cano's Formal EEO complaints

Cano's formal EEO complaints were assigned to OCI Investigator Johnson, who wrote Cano a letter dated January 5, 1995 informing Cano that Johnson would be conducting an on-site investigation of the two formal EEO complaints involving reprisals, starting on the afternoon of January 18, 1995. In that letter, Johnson explained the procedures which she would follow in attempting to mediate and later investigate, if necessary, the complaints. The letter stated that there would be a mediation conference from 1:00 to 4:00 on the afternoon of January 18, with a formal investigation lasting another 2 hours, beginning immediately thereafter, if there was no settlement. The letter noted that "failure to cooperate in the investigation . . . may be the basis for an adverse inference concerning the position of the nonresponding party". Subsequent to learning of the upcoming investigation, Cano approached King at the Union office explaining the history of her EEO complaints and seeking his representation. She designated King as her personal representative on January 12, 1995.

January 18, 1995 Meeting

Cano, King and Johnson met with representatives of Luke AFB as scheduled at 1:00 on the afternoon of January 18. King attended in his role as Cano's personal representative.(2) Luke AFB was represented by Bennett, who had been assigned as Agency Representative in the case and had been given certain settlement authority, and Pelletier, Cano's former supervisor.(3)

The parties met in a conference room in the headquarters building, across from the EEO office and upstairs from the legal office, about 1 or 1 miles from Cano's work place. Arrangements for the meeting had been made by Harris or her assistant. Cano's release to attend the meeting during duty time was approved by her supervisor. Cano considered the meeting to be mandatory.(4) Cano received credit for the time spent in the meeting beyond her scheduled duty hours.

During the initial part of the meeting, Johnson led the parties in an attempted mediation of the dispute. Several other management officials were in and out of the meeting room lending their expertise to the deliberations. During the mediation, the parties discussed, in depth, the remedy which Cano was seeking and the actions that management was willing to take in order to settle the complaints. No written settlement agreement was proposed because it became clear to management, late in the afternoon, that it would not agree to Cano's demands. Among the topics discussed were permanent assignment to another position, formal training for that position, a revised performance appraisal, a monetary performance award, the deletion of certain material from Cano's record, and a cash payment. In addition to attempting to reach a settlement satisfactory to Cano, King was interested in assuring that the interests of other bargaining unit employees were not compromised by the settlement.

When it became clear that the parties would be unable to reached a mediated settlement that day and the management representatives left the meeting, Johnson began to take a statement from Cano, the first step in her investigation of the formal EEO complaints. King, whose testimony regarding this meeting I find most credible, left the meeting before it ended. King left before there was any discussion of the need for Johnson and Cano to meet again the following day. Johnson and Cano continued their discussions, probably for another couple of hours, and agreed to get together the next day to resume the meeting.

January 19, 1995 Meeting

Cano met with Johnson at 3:00 pm the following afternoon to resume their discussions of her EEO complaints. There was conflicting and uncertain testimony concerning when and by whom this time was set. They met in the same headquarters building conference room as the previous day. Again, Cano's supervisor approved her release to go to the meeting on duty time. Despite the fact that this second meeting was prescheduled, perhaps from as early as late on the previous day, there was no attempt by management to contact the Union.(5)

Early during the course of this meeting, Cano was presented with a proposed settlement agreement by either Harris or Bennett. In discussions that followed with Cano, the agreement was changed to incorporate a provision that Cano's reassignment would not impact on other positions in the work unit. Harris was central to these discussions and was in and out of the room. Bennett was also involved, at least behind the scenes, and probably in the room with Cano. Despite the fact that she considered the terms of the agreement within her settlement authority, Bennett involved her supervisor, Staff Judge Advocate Lt Col Donovan. Cano finally signed the agreement at 5:24 pm and wrote (in words dictated to her by Harris) "I elect to sign this agreement without the presence of my representative". Because of unexplained delays, it was almost another hour before Cano received a copy of the signed agreement and was free to go at about 6:30 pm.

Discussion and Conclusions of Law

A. Relevant Statutory Provisions

Section 7114(a)(2)(A) of the Statute provides:

(2) An exclusive representative of an appropriate unit in an agency shall be given the opportunity to be present at-

(A) any formal discussion between one or more representatives of the agency and one or more employees in the unit or their representatives concerning any grievance or any personnel policy or practices or other general conditions of employment;

Section 7116(a)(1) and (8) of the Statute provides:

(a) For the purpose of this chapter, it shall be unfair labor practice for an agency-

(1) to interfere with, restrain, or coerce any employee in the exercise by the employee of any right under this chapter;

* * * *

(8) to otherwise fail or refuse to comply with any provision of this chapter.

B. Johnson, OCI Investigator, Harris and Bennett were representatives of Luke AFB

The GC of the FLRA contends that Johnson, Bennett and Harris are all representatives of Luke AFB, within the meaning of § 7114(a)(4)(A) of the Statute.

Luke AFB argues that because Johnson is employed by OCI, a part of the DOD, and not by Luke AFB, or even by the Air Force, she was not a representative of Luke AFB.

The Authority has held that, for the purposes of § 7114(a)(2)(A) of the Statute, a contractor functions as the "representative of the agency" when the contractor conducts the agency's business. Defense Logistics Agency, Defense Depot Tracy, California, 39 FLRA 999, 1013 (1991)(DLA).

EEOC Management Directives provide that an agency is responsible for investigating formal EEO complaints filed against it by its employees, but that it may contract out an investigation or may arrange for another agency or part of its own agency to conduct the investigation. It remains responsible for the content and timeliness of the investi-gation. EEO MD-110, p .4-9.

The OCI investigation was initiated by letters to it from the Luke AFB Commander. Johnson, Harris and Bennett were all employees of the DOD. Johnson was brought in from another DOD component because employees with her special training and expertise had been consolidated into the OCI. The results of the investigation were to be reported back to management at Luke AFB in the format requested by the Air Force for further action by Luke AFB. Despite the fact that Johnson had to be brought in from the outside to conduct the investigation, the content and timeliness of the investigation remained the responsibility of Luke AFB. It was Luke AFB's obligation, under the EEOC regulations, that Johnson was performing.

Johnson was at Luke AFB at the request of Luke AFB's Commander to investigate the case and report her findings back to him. Harris reported directly to the Commander and was engaged in supporting the investigation/mediation. Bennett, employed at Luke AFB, was its representative to settle these cases. The degree of supervision exercised by Luke AFB management over the actions of these employees is irrelevant to the inquiry. Johnson, Bennett and Harris were clearly engaged in the work of Luke AFB, investigating or resolving Cano's formal EEO complaints, during the January 19 meeting. See Defense Criminal Investigative Service v. FLRA, 855 F.2d 93, 99, 100 (3d Cir. 1988).

In light of the foregoing I conclude that Johnson, Harris and Bennett were representatives of Luke AFB within the meaning of § 7114(a)(2)(A) of the Statute. See DLA and Department of Health and Human Services, Social Security Administration, Baltimore, Maryland and Social Security Administration, Region X, Seattle, Washington, 39 FLRA 298, 311-312 (1991).

C. The January 19 meeting was a formal discussion concerning a grievance within the meaning of § 7114(a)(4)(A) of the Statute

The Authority holds that the Union has the right to be present 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, so that the Union may safeguard its interests and the interests of the unit employees in the context of the Union's represen-tational responsibilities under the Statute. General Services Administration, 50 FLRA 401, 404 (1995)(GSA).

The Authority requires that all four elements of section 7114(a)(2)(A) be established before the Union's right to be represented obtains. Therefore, the evidence must satisfy the following: (1) there must be a discussion, (2) which is formal, (3) between one or more unit employees and management, (4) concerning any grievance or any personnel policy or practices or other general condition of employment. DLA, at 1012.

Authority decisions find that a formal EEO complaint constitutes a "grievance" within the meaning of § 7114(a) (2)(A) of the Statute. See Nuclear Regulatory Commission, 29 FLRA 660, 662 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) and National Labor Relations Board, 46 FLRA 107 (1992).

Luke AFB denies, however, that the meeting concerned a grievance, within the meaning of § 7114(a)(2)(A), relying upon the decision of the Court of Appeals for the Ninth Circuit in IRS, Fresno Service Center v. FLRA, 706 F.2d 1019 (9th Cir. 1983) (IRS, Fresno). This reliance is misplaced because there are substantial factual differences between the subject case and IRS, Fresno. IRS, Fresno involved an EEO matter during its informal or precomplaint stage, whereas the subject case involves Cano's formal EEO complaints, filed after she had exhausted the precomplaint procedures. In a later case the Court of Appeals explained its decision IRS, Fresno by noting that:

In that case, we found the meetings to be informal only because the EEOC regulatory framework that governed the case explicitly characterized them in that way. Under that framework, the employee was required to try to resolve a complaint on an informal basis before filing a formal complaint.

Department of Veterans Affairs Medical Center, Long Beach, California v. FLRA, 16 F.3d 1526, 1532 (9th Cir. 1994) (DVA, Long Beach).

In light of the foregoing I conclude that Cano's formal EEO complaints were "grievances" within the meaning of § 7114(a)(4)(A) of the Statute.

The Authority has held that, within the meaning of § 7114(a)(2)(A) of the Statute, a "meeting" is equivalent to a "discussion", and that actual dialogue is not necessary. Kelly Air Force Base, 15 FLRA 529 (1984). During the January 19 meeting, the participants discussed and reached a settlement of Cano's formal EEO complaints. Thus the January 19 meeting was a "discussion" within the meaning of § 7114(a)(4)(A) of the Statute.

In determining whether a discussion or a meeting is "formal" within section 7114(a)(2)(A) of the Statute, the Authority considers the totality of facts and circumstances. Marine Corps Logistics Center, Barstow, CA, 45 FLRA 1332, 1335 (1992). Among the factors the Authority examines are the following eight indicia of formality:

(1) whether the meeting was held by a first-level supervisor or someone higher; (2) whether 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 attendance was mandatory; and (8) the manner in which the meeting was conducted (whether comments were noted or transcribed).

Defense Logistics Agency, 48 FLRA 744, 753 (1993).

Johnson met with Cano on the afternoon of January 19 from 3:00 pm to about 6:30 pm to investigate/mediate Cano's formal EEO complaints. Harris and Bennett were also involved in the efforts to settle Cano's formal EEO complaints. In meeting with Cano, the three were clearly acting as "representatives of the agency" in attempting to settle or otherwise investigate the complaints, as management was required to do at that stage. Each of the three representatives had a different role to play. Johnson's main goal was to mediate a settlement of the complaints for Luke AFB. Harris was responsible to see that the complaints were properly processed (either investigated or settled) so as to meet Luke AFB's obligations toward Cano under the EEO statute. Bennett had been delegated settlement authority and was representing Luke AFB as its lead negotiator.

The indicia of formality apply to the meeting as follows: (1) the meeting was held by Johnson, who was visiting the base at the written request of its Commander, to investigate the charges, and by Harris and Bennett, who were employed at a very high level of management; (2) two high-level management representatives, Johnson and Harris, participated extensively in the meeting while Bennett appears also to have probably attended briefly; (3) the meeting took place in the headquarters building, a mile or more away from Cano's work site; (4) the meeting lasted for over three hours; (5) The meeting was scheduled in advance and was a continuation of a meeting which was arranged by correspondence from Johnson to all involved weeks in advance; (6) there clearly was a pre-established agenda for the meeting, mediation and/or investigation of Cano's EEO complaints and her settlement demands;(7) Cano considered the meeting to be mandatory(6); and (8) the meeting resulted in a signed settlement agreement reflecting the results of the meeting.

This discussion was not an informal conversation between Cano and Johnson, Bennett and Harris at which the EEO matter just happened to come up. Rather, the purpose of the meeting, held in the headquarters building was to discuss the formal EEO complaints and to discuss the their settlement. This meeting was surely sufficiently "formal", within the meaning of §7114(a)(2)(A), to warrant notification of AFGE Local 1547 and to provide it the opportunity to be represented.

Neither King nor any other representative of AFGE, Local 1547, was given notice or the opportunity to be present during the January 19 discussion.(7)

The Authority has recognized that the intent and purpose of § 7114(a)(2)(A) of the Statute is to provide the union with an opportunity 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. Consideration of the intent and purpose of § 7114(a)(2)(A) of the Statute is only a guiding principal to inform judgements in applying the statutory criteria. GSA at 404.

In light of all of the forgoing, I conclude that the January 19 meeting met all of the criteria set forth in § 7114(a)(2)(A) of the Statute. It was a formal discussion between a unit member and representatives of Luke AFB concerning a grievance, and AFGE Local 1547 was entitled to notice of the meeting and an opportunity to be present at it. Luke AFB's failure to notify AFGE Local 1547 about the meeting denied the Union the opportunity to be represented at the January 19, 1995, meeting. Luke AFB's failure to notify and afford the Union the opportunity to be present at the discussion violated § 7116(a)(1) and (8) of the Statute. GSA; U.S. Department of Justice, Bureau of Prisons, Federal Correctional Institution, Bastrop, Texas, 51 FLRA 1339 (1996).

Luke AFB argues that the EEOC rules encourage agencies to make every attempt to voluntarily settle complaints, and to incorporate alternative dispute resolution techniques into investigative efforts. 29 C.F.R. §§ 1614.603 and 1614.108(b). Because Johnson was attempting to mediate and settle Cano's formal EEO complaints, Luke AFB asserts that made the January 19 meeting informal. I reject this contention that attempting to settle Cano's formal EEO complaints magically made the discussion informal. On the contrary, because it was a meeting whose purpose was, at least to a major extent, to settle the formal EEO complaints, indicates the meeting was formal.

Luke AFB argues that the Union should not have been invited to the January 19 meeting because Cano's rights outweigh those of the Union. Section 7114(a)(2)(A) specifically grants the Union the right to be present at formal discussions concerning grievances in order to safeguard the interests of bargaining unit employees. GSA. The January 19 meeting meets all the requirements of § 7114(a)(2)(A) of the Statute. To exclude the Union from this meeting, at which a settlement was negotiated and arrived at, would be to prevent it from performing its duties and exercising its rights as provided in the Statute. Luke AFB has shown nothing in the EEOC procedures or directives that compels this result. Respondent's argument of weighing an employee's right to settle a grievance with the Union's right to represent the unit employees, and to find the employee's right superior would, in effect, strike § 7114(a)(2)(A) from the Statute. Accordingly I reject this argument.

Luke AFB argues that the mediation process requires confidentiality under the Alternative Dispute Resolution Act, 5 U.S.C. § 571 et seq (ADRA). Respondent sites § 574 of the ADRA. Luke AFB's reliance is misplaced. ADRA envisions using a "neutral" to mediate disputes and provides that the "neutral" mediator serves at the will of the parties. ADRA § 537. Johnson is not such a "neutral". She is a represen-tative of Luke AFB for the purpose of investigating and settling Cano's formal EEO complaints and the record does not establish that Cano had any power or right to discharge Johnson or to choose another mediator. Further nothing in the ADRA forbids the Union from being present at the settlement discussions or when settlement was reached in Cano's formal EEO complaints. ADRA does not, by its terms, eliminate the Union's rights under § 7114(a)(2)(A) of the Statute. In this regard it should be noted that an official from OCI testified that they are governed by 29 C.F.R. Part 1614 and EEOC Management Directive 110. I note that nothing in these regulations and directives forbids the Union from being present at the settlement discussions of formal EEO complaints. Luke AFB's Chief Equal Employment Opportunity Counselor testified that the difference between the initial informal stage of an EEO matter and the formal complaint stage, is the former is confidential whereas the latter is "going public."

In light of all the foregoing I conclude that there was no confidentiality requirement that prevented the Union from exercising its right under § 7114(a)(2)(A) of the Statute, to be present at the formal discussion conducted on January 19, 1995.

Having concluded that Luke AFB violated § 7116(a)(1) and (8), it is recommended that the Authority issue the following Order:

Order

Pursuant to Section 2423.29 of the Authority's Rules and Regulations, and Section 7118 of the Federal Service Labor-Management Relations Statute, Luke Air Force Base, Arizona shall:

1. Cease and desist from:

a. Failing or refusing to give the American Federation of Government Employees, Local 1547 advance notice and the opportunity to be represented at formal discussions with bargaining unit employees concerning any grievance or any personnel policy or practices or other general conditions of employment, including formal EEO complaints.

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

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

a. Through its Chief Equal Employment Opportunities Counselor, provide the American Federation of Government Employees, Local 1547, advance notice and the opportunity to be represented at formal discussions with bargaining unit employees concerning mediation or investigation of formal EEO complaints.

b. Post at Luke Air Force Base, Arizona copies of the attached Notice to All Employees on forms furnished by the Federal Labor Relations Authority. Upon receipt of the forms, they shall be signed by the Commander, Luke Air Force Base, and they shall be posted and maintained for 60 consecutive days in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken to ensure that the these Notices are not altered, defaced, or covered.

c. Pursuant to Section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Federal Labor Relations Authority, Denver Region, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply.

Issued, Washington, DC, September 13, 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 Department of the Air Force, Luke Air Force Base, Arizona 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 fail or refuse to give the employees' exclusive representative, the American Federation of Government Employees, Local 1547 (the Union), advance notice and the opportunity to be represented at formal discussions with bargaining unit employees concerning any grievance or any personnel policy or practices or other general conditions of employment, including meetings to mediate or investigate formal EEO complaints filed by bargaining unit employees.

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

WE WILL, through the Chief EEO Counselor, give the Union advanced notice and the opportunity to be represented at formal discussions with bargaining unit employees concerning mediation or investigation of formal EEO complaints.

________________________

(Activity)

Date: ___________ 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 ts provision, they may communicate directly with the Regional Director for the Federal Labor Relations Authority, whose address is: 1244 Speer Boulevard, Suite 100,

Denver, Colorado, 80204, (303) 844-5224.




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

Authority's Footnotes Follow:

1. The Defense Department has consolidated the investigation of formal EEO complaints from its components in the OCI, which is part of the Department's Civilian Personnel Management Service.

2. The Judge identified these regulations as 29 C.F.R. Part 1614 and the Federal Sector Complaints Processing Manual, EEO Management Directive 110 (EEO MD 110). See Judge's Decision at 12.

3. EEO MD 110, Chapter 1. Paragraph IV. provides:

EEO counselors, EEO officers, and EEO program managers have vital roles in the resolution of discrimination complaints and to operate effectively they must have the confidence of both the agency and the employees. It is inconsistent with their neutral roles for EEO counselors, EEO officers, and EEO program managers to serve as representatives for agencies or complainants. Therefore, EEO counselors, EEO officers, and EEO managers cannot serve as representatives for complainants or for agencies in connection with the processing of discrimination complaints. See generally, 29 C.F.R. 1614.605(c) (disqualification of representatives for conflict of duties).

4. The Respondent cites National Treasury Employees Union v. FLRA, 774 F.2d 1181 (D.C. Cir. 1985) (NTEU). The court in NTEU reversed the Authority's decision that the term "grievance" under section 7114(a)(2)(A) excluded statutory appeals. However, in dictum upon which the Respondent relies here, the court noted that "a direct conflict between the rights of an exclusive representative under section 7114(a)(2)(A) and the rights of an employee victim of discrimination should also presumably be resolved in favor of the latter." Id. at 1189, n.12 (emphasis in the original).

5. The Authority found in TRACON, 51 FLRA at 123, that disclosure of an EEO settlement agreement requested by the union under section 7114(b)(4) of the Statute would violate the Privacy Act.

6. Neither the Respondent nor the General Counsel presented any arguments that our analysis should be affected by the fact that the events spanned two days and the alleged violation occurred on the second day. Further, there are no arguments that the fact that the Union president attended the first day affects this case. Similarly, the complaint does not allege, and we do not decide, whether the Respondent violated the Statute by failing to provide the Union notice of the January 18 mediation/investigation session.

We note that section 7114(a)(2)(A) of the Statute places the burden on an agency to provide adequate prior notification so that the union may have the opportunity to designate its representatives for the formal discussion. See, e.g., Department of the Air Force, Sacramento Air Logistics Center, McClellan Air Force Base, California, 29 FLRA 594, 604-05 (1987). As such, the statutory burden of informing a union about a formal discussion does not shift to a complainant who has chosen a union official as a personal representative under EEO regulations. Thus, the Union president's attendance as the employee's personal representative at the mediation/investigation session on January 18 did not relieve the Agency of its obligation to inform the Union in advance about the formal discussion on January 19. Id. at 606.

7. We find no merit to the Respondent's contention that the Union's right to be present at an OCI-conducted mediation/investigation session "where [the Union] is not the personal representative of the complainant" would interfere with management's internal deliberative process. Exceptions at 14. The Union seeks to be present only at the discussions between the management representative and the employee and not at any intra-management meetings where negotiation strategy or settlement authority is discussed.

8. The Judge does not explain how he arrived at this finding. However, when asked at the hearing whether she ever considered not attending the mediation/investigation session with the OCI investigator, the employee testified on direct examination: "No, I thought this was the thing to do . . . [i]t was just like I was supposed to be there." Transcript at 83.

9. Section 7103(a)(9) of the Statute provides:

(9) 'grievance' means any complaint--

(A) by any employee concerning any matter relating to the employment of the employee;

(B) by any labor organization concerning any matter relating to the employment of any employee; or

(C) by any employee, labor organization, or agency concerning--

(I) the effect or interpretation, or a claim of breach, of a collective bargaining agreement; or

(ii) any claimed violation, misinterpretation, or misapplication of any law, rule, or regulation affecting conditions of employment[.]

10. The Respondent's reliance on U.S. Government Printing Office, 23 FLRA 35 (1986) (GPO) is misplaced. GPO did not involve section 7114(a)(2)(A) of the Statute as here, but, instead, it involved section 7116(a)(1) and (5).

11. We have modified section 1(a) of the Judge's recommended Order, and the recommended Notice, to be consistent with the Judge's recommendation that the remedial order require the Respondent to provide the Union advance notice and an opportunity to be represented at "formal discussions with bargaining unit employees concerning mediation or investigation of formal EEO complaints." Id. at 13. Further, we have modified section 2(a) of the recommended Order, and the recommended Notice, so that the Respondent can designate the person who would provide the Union advance notice and the opportunity to be represented at formal discussions.




ALJ's Footnotes Follow:

1. I hereby take official notice of the Management Directive issued by the Equal Employment Opportunity Commission entitled the Federal Sector Complaints Processing Manual and numbered EEO MD-110. See 5 C.F.R. § 2423.19(o) of the FLRA's Rules and Regulations.

2. AFGE Local 1547 had never been notified of EEO complaint mediation/investigation meetings in cases in which one of its representatives was not involved as the designated personal representative of the complainant.

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