File 2: ALJ's Decision
[ v57 p734 ]
Office of Administrative Law Judges
DEPARTMENT OF THE AIR FORCE
LUKE AIR FORCE BASE, ARIZONA
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1547
Case No. DE-CA-00216
Phillip G. Tidmore
Capt. Matthew C. Hoyer
Counsel for the Respondent
Bruce E. Conant
Counsel for the General Counsel, FLRA
Before: GARVIN LEE OLIVER
Administrative Law Judge
Statement of the Case
The unfair labor practice complaint alleges that the Department of the Air Force, Luke Air Force Base, Arizona (the Respondent), violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute), 5 U.S.C. § 7116(a)(1) and (5). The complaint alleges that the Respondent changed the process for providing employees with Request for Equal Employment Opportunity (EEO) Counseling packages (EEO package), which contains forms and information relating to EEO complaints, without providing the American Federation of Government Employees, Local 1547 (the Union), with notice and an opportunity to bargain over the change as required by the Statute.
Respondent's answer denied any violation of the Statute. [n1] Respondent filed a motion which it renewed at the hearing in this case, that the complaint be dismissed because the Authority lacks jurisdiction over the EEO process.
For the reasons explained below, I conclude that the Respondent violated the Statute as alleged.
A hearing was held in Phoenix, Arizona. The Respondent and the General Counsel were represented by Counsel and afforded a full opportunity to be heard, adduce relevant evidence, and to examine and cross-examine witnesses. The Respondent and the General Counsel filed helpful briefs.
Based on the entire record, including my observation of the witnesses and their demeanor, I make the following findings of fact, conclusions of law, and recommendations. In making these findings, I have credited the testimony of Brock Henderson, Harvey Hembd, Jim Johnston, and Diane Sanchez. Their testimony was mutually corroborative, consistent with the surrounding circumstances, and their recollections were forthright and convincing.
Findings of Fact
The American Federation of Government Employees, Local 1547, is the exclusive representative of an appropriate unit of employees at Luke Air Force Base and serviced by the Luke Air Force Base Civilian Personnel Flight. At all times material to the complaint the Union and the Respondent were parties to a collective bargaining agreement. Article 14 of the parties collective bargaining agreement pertains to equal opportunity however, Article 26, which pertains to the negotiated grievance procedure, excludes matters concerning EEO complaints involving an allegation of discrimination from coverage under the negotiated grievance procedure.
In January 1997, H.K. Brown became the Director of EEO for the Respondent. Brown's immediate supervisor is the Commanding General of Luke Air Force Base. Diane Sanchez serves as the EEO Assistant under the EEO Director. Witness testimony established that the EEO office provides employees who allege that they have experienced discrimination with a "Request for EEO Counseling" package. This EEO package consists of blank forms and questionnaires, summaries of EEO law, and descriptions of the EEO complaint process.
Ms. Sanchez testified that before Mr. Brown became EEO Director, the EEO office gave EEO packages to employees prior to conducting any interview with the employees. According to Ms. Sanchez and Mr. Hembd, who serves as the Union's EEO Fair Practices Coordinator, at some point after Mr. Brown became EEO Director the EEO office began conducting an initial interview with employees prior to giving them an EEO package. Mr. Hembd also testified that in the past, he would obtain an EEO package on behalf of employees whom he was representing or would send them to the EEO office to obtain the package and have them [ v57 p735 ] bring it to the Union office to fill out. Mr. Hembd testified that he first learned of the change in practice with respect to providing the EEO package to employees in November 1999 when he went to the EEO office to obtain an EEO package for an employee and Mr. Brown denied his request. [n2]
Mr. Henderson received an e-mail dated December 13, 1999, from Mr. Brown stating that:
It is inappropriate for this office to give out EEO Packages when a person walks through the door. There is an initial counseling process that must take place. This is called Initial Contact with the EEO Office.
At this time it is determined by the counselor whether or not the individual seeking assistance is in the right office. If it is determined at that time that the situation is included in the following categories of discrimination, i.e. sex, reprisal, etc. than [sic] an EEO package will be given. If the situation does not fall within the EEO arena, than [sic] this office will make a referral.
If you have any questions, please contact me.
(G.C. Exh. 3).
Mr. Henderson testified that he initially thought that this e-mail was advance notice of a change. By e-mail dated January 13, 2000, Mr. Henderson on behalf of the Union demanded to bargain "over the issue of when and to whom an EEO request for counseling package will be given out by the EEO Office." Additionally, Mr. Henderson stated in his e-mail that until bargaining occurred, the Union expected that the status quo would be maintained and employees would be allowed to receive EEO packages prior to divulging any information to Respondent's representatives such as those in the EEO office. Mr. Henderson sent a follow-up e-mail dated February 10, 2000, that noted that the Union had not received any response to its earlier demand to bargain and stated that if no response was received by February 18, 2000, it would consider its e-mail as fulfilling its obligation to give notice of the intent to file an unfair labor practice charge. According to Mr. Henderson, the Union received no response to its demand to bargain.
Mr. Jim Johnston, a bargaining unit employee, testified that he was affected by a reduction-in-force (RIF) that occurred in late 1999. Because he suspected that discrimination was involved in the RIF, he called the EEO office and requested an EEO package. Mr. Johnston testified that when he told Mr. Brown that he just wanted to pick up the package and fill it out at home, Mr. Brown told him that he needed to make an appointment to get the package. Mr. Johnston made the appointment and went to the EEO office accompanied by Mr. Hembd. According to Mr. Johnston, he met with Mr. Brown who questioned him about the nature of his complaint and what he wanted to file. At the end of the meeting, which according to Mr. Johnston lasted about 5 to 7 minutes, Mr. Brown gave him an EEO package.
Mr. Hembd testified that he accompanied several employees to their initial interviews and described the interviews as lasting about 5 minutes each. According to Mr. Hembd, during the interviews Mr. Brown asked general questions relating to the type of complaint involved, what category it would fall under, and whether it was a protected category of discrimination.
Mr. Henderson and Mr. Hembd testified that several employees reported to them that the EEO office advised them during the initial interview that they did not have an EEO case. Mr. Brown, however, testified that he would never tell employees that they had no case but asserted that it is important to be aware of time limits that exist in other forums such as the grievance procedure that might present an appropriate avenue for an employee's allegations.
Ms. Sanchez testified that it is important to make sure that employees are in the right office and that employees do not miss time limits for filing in other forums such as the negotiated grievance procedure as a result of coming to the wrong office. Ms. Sanchez also testified that the EEO office tells employees if, for example, they are entitled to go to the Merit Systems Protection Board rather than the EEO route. According to Ms. Sanchez, if an employee refuses to provide information about their complaint, she checks with Mr. Brown and if he tells her to give them an EEO package, she does so. Ms. Sanchez further stated that everyone who wants an EEO package eventually gets one. [ v57 p736 ]
Discussion and Conclusions
A. Jurisdictional Issue
As a preliminary matter, the Respondent asserts that the Authority does not have jurisdiction over the dispute in this case. More specifically, the Respondent argues that under 42 U.S.C. § 2000e-16, which prohibits discrimination based on race, color, religion, sex, or national origin in Federal government employment, the Equal Employment Opportunity Commission (EEOC) is charged with enforcing the prohibitions on such discrimination. The Respondent contends that EEOC is solely responsible for interpreting section 2000e-16 and for issuing regulations that govern the administrative processing of Federal sector EEO complaints. The Respondent argues that the Statute does not give the Authority jurisdiction over the process that is prescribed by EEOC pursuant to 42 U.S.C. § 2000e-16.
The EEOC has authority to enforce statutory provisions that prohibit discrimination based on race, color, religion, sex, national origin, age or handicap and issue rules, regulations, orders and instructions to carry out its responsibilities under those statutory provisions. See 29 U.S.C. §§ 206(d), 633a and 791; 41 U.S.C. § 2000e-16; and 29 C.F.R. Part 1614. Under section 7105(a)(2)(G) of the Statute, the Authority is responsible for resolving complaints of unfair labor practices filed pursuant to section 7118 of the Statute. The Authority's jurisdiction under section 7118 extends to charges by "any person" that an "agency or labor organization . . . engaged in . . . an unfair labor practice" that occurred no more than six months before the filing of the charge with the Authority. 5 U.S.C. § 7118(a)(1) and (4)(A). Section 7116(a)(1) provides that it shall be an unfair labor practice to interfere with, restrain or coerce an employee in the exercise of rights granted by the Statute. Section 7116(a)(5) provides in relevant part that it shall be an unfair labor practice to refuse to negotiate in good faith with an labor organization as required by the Statute.
The charge in this case as filed and amended by the Union alleges that the Respondent violated section 7116(a)(1) and (5) by refusing to negotiate with the Union prior to changing a practice with respect to when an EEO package would be provided to employees. The Respondent makes no claim that the Union lacked standing to file the charge or that the charge was not timely within the meaning of section 7118(a)(4)(A). Accordingly, the charge meets the jurisdictional requirements of section 7118 of the Statute.
The Respondent makes a general assertion that EEOC is solely responsible for interpreting and issuing regulations relating to the enforcement of 42 U.S.C. § 2000e-16. The Respondent does not, however, cite any particular statutory provision that divests the Authority of its jurisdiction over unfair labor practice charges that relate to actions involving the processes prescribed by EEOC. Moreover, I find nothing in the statutory provisions establishing EEOC's authority to enforce prohibitions on various forms of discrimination that divests the Authority of its jurisdiction to determine whether the Respondent committed an unfair labor practice by its actions in this case. Cf. United States Immigration and Naturalization Service, United States Border Patrol, El Paso, Texas, 47 FLRA 170, 182-83 (1993)(Authority rejected agency's argument that it lacked jurisdiction to decide issue relating to employee rights in an unfair labor practice case because the Merit Systems Protection Board (MSPB), pursuant to its exclusive statutory authority, promulgated regulations that defined the extent of employee rights. The Authority found that nothing in MSPB's regulations limited its authority to determine whether an agency had committed an unfair labor practice in the course of conducting a formal discussion).
In order to resolve disputes pursuant to its powers and duties under section 7105 of the Statute, the Authority often must analyze and apply provisions of laws that other agencies are assigned the responsibility for administering and provisions of regulations issued by agencies other than itself. See, e.g., Patent Office Professional Association and U.S. Department of Commerce, Patent and Trademark Office, 53 FLRA 625 (1997)(in determining the negotiability of union proposals, the Authority analyzed and applied various provisions of regulations issued by the Office of Government Ethics that were codified at 5 C.F.R. Parts 2634 and 2635); Federal Aviation Administration, SEATAC Airport, Seattle, Washington and National Air Traffic Controllers Association, 52 FLRA 701 (1996)(in ruling on exceptions to arbitrator's award, the Authority analyzed and applied regulations issued by Occupational Safety and Health Administration and the Environmental Protection Agency); American Federation of Government Employees, AFL-CIO, Local 3231 and Department of Health and Human Services, Social Security Administration, 25 FLRA 600 (1987)(in determining the negotiability of a union's proposal, the Authority analyzed and applied 5 U.S.C. § 6101, for which Office of Personnel [ v57 p737 ] Management was responsible for administering); and National Treasury Employees Union and Department of the Treasury, U.S. Customs Service, 21 FLRA 6 (1986), aff'd sub nom. Department of the Treasury, U.S. Customs Service v. FLRA, 836 F.2d 1381 (D.C. Cir. 1988)(in determining the negotiability of a union proposal, the Authority analyzed and applied the Travel Expense Act, 5 U.S.C. § 5701 et seq. and the Federal Travel Regulations, which were issued by the General Services Administration)(GSA).
The Authority's interpretations of laws administered by other agencies and constructions of regulations issued by other agencies need not receive deference from reviewing courts. See, e.g., National Treasury Employees Union v. FLRA, 848 F.2d 1273, 1275 (D.C. Cir. 1988)(NTEU v. FLRA). The fact that the Authority must engage in application or interpretation of such provisions in order to resolve a dispute that comes within the ambit of section 7105 does not mean, however, that the Authority lacks jurisdiction over such a dispute. Cf., e.g., General Services Administration v. FLRA, 86 F.3d 1185 (D.C. Cir. 1996)(in reviewing Authority decision, the court rejected the Authority's interpretation of a statutory provision that the GSA was responsible for administering and instead deferred to the interpretation offered by GSA. Nevertheless, the court remanded the case to the Authority for further determination on GSA's obligation to bargain over a change in practice that related to the statutory provision); NTEU v. FLRA, 848 F.2d at 1274-77 (court upheld Authority's negotiability determination on a proposal that concerned the termination of probationary employees, a matter over which Congress delegated substantial authority to the Office of Personnel Management); Department of the Treasury v. FLRA, 837 F.2d 1163, 1167 (D.C. Cir. 1988)(where Authority's decision rests on its interpretation of statutory provisions and regulations, none of which is a constituent of or issued pursuant to a statute that the Authority administers, court owes no deference to the Authority's construction but will follow Authority's reasoning to the extent the court deems it should).
I reject the Respondent's argument that the complaint should be dismissed because the Authority lacks jurisdiction and deny its motion to that effect.
B. Merits of the Complaint
Prior to implementing a change in conditions of employment of bargaining unit employees, an agency generally is required to provide the exclusive representative with notice and an opportunity to bargain over those aspects of the change that are within the duty to bargain. With limited exceptions, absent a waiver of bargaining rights, parties must satisfy their mutual obligation to bargain before changes in conditions of employment are implemented. The extent to which an agency is required to bargain over changes in conditions of employment depends on the nature of the change. Specifically, a union may be entitled under the Statute to bargain over the actual decision or substance of a change. Where the substance of the decision is not itself subject to negotiation, the agency is nonetheless obligated to bargain over the impact and implementation of that decision if the resulting change has more than a de minimis effect on bargaining unit employees. See, Federal Bureau of Prisons, Federal Correctional Institution, Bastrop, Texas, 55 FLRA 848, 852 (1999).
In its answer to the complaint, the Respondent admits that on or about December 13, 1999 it notified the Union that it intended to change its procedures by requiring that employees be interviewed before they would be provided an EEO package. [n3] Moreover, in its post-hearing brief the Respondent does not dispute that the practice Mr. Brown instituted in this regard differed from that of the previous EEO Director. The Respondent asserts, however, that its actions did not violate the Statute because it had no obligation to bargain over the change.
In support of Respondent's assertion that it had no obligation to bargain, the Respondent argues that the complaint does not involve a grievance for purposes of section 7114(a)(2)(A) of the Statute. Citing Luke Air Force Base v. FLRA, 208 F.3d 221 (9th Cir. 1999)(Luke Air Force Base) and Internal Revenue Service, Fresno Service Center, Fresno, California v. FLRA, 706 F.2d 1019 (9th Cir. 1983)(IRS, Fresno), the Respondent argues that the Union has no right to be involved in the EEO process since the parties' collective bargaining agreement excludes complaints of discrimination from the negotiated grievance procedure and "there is no grievance for the Union to be involved with under the law." (Resp. brief at 10). The Respondent also argues [ v57 p738 ] that the subject matter of the alleged change is specifically provided for by statute with jurisdiction conferred on the EEOC rather than the Authority and, thus, there is no condition of employment involved and no obligation to bargain. In the alternative, the Respondent asserts that even assuming that a condition of employment was involved, there was no duty to bargain because the change was de minimis.
Under the Statute, a matter proposed to be bargained is outside the duty to bargain if it does not concern conditions of employment. See, e.g., Antilles Consolidated Education Association and Antilles Consolidated School System, 22 FLRA 235, 236 (1986). The term "conditions of employment" is defined in section 7103(a)(14) as "personnel policies, practices, and matters whether established by rule, regulation, or otherwise, affecting working conditions[.]" The Authority has held that matters related to discrimination in employment are conditions of employment. See, e.g., American Federation of Government Employees, AFL-CIO and Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 2 FLRA 604, 616-17 (1980), enforced as to other matters sub nom. Department of Defense v. FLRA, 659 F.2d 1140 (D.C. Cir. 1981), cert. denied sub nom. AFGE v. FLRA, 455 U.S. 945 (1982).
Section 7103(a)(14)(C) excludes from the definition of conditions of employment matters that are "specifically provided for by Federal statute[.]" The Authority construes this exclusion narrowly. The Authority has held that mere reference to a matter in a statute is not sufficient to exclude it from the definition of conditions of employment. In this regard, the Authority has held that a matter is "specifically provided for," within the meaning of section 7103(a)(14)(C), only to the extent that the governing statute leaves no discretion to the agency. See, e.g., International Association of Machinists and Aerospace Workers, Franklin Lodge No. 2135 and U.S. Department of the Treasury, Bureau of Engraving and Printing, 50 FLRA 677, 681-85 (1995), enforced mem. sub nom. Bureau of Engraving and Printing v. FLRA, 88 F.3d 1279 (D.C. Cir. 1996). Only those aspects of a matter that are specifically provided for by statute are found to be excepted from the definition of conditions of employment; the aspects of a matter over which an agency has discretion are not so excepted. Id.
The Respondent makes only a generalized claim that the subject matter of this case is specifically provided by statute. The Respondent fails to cite any specific statutory provision that governs a sequence and process for interviewing employees who suspect that they may have suffered discrimination and providing them with documents such as the EEO package at issue in this case. As noted above, EEOC is authorized to enforce statutory provisions that prohibit discrimination based on race, color, religion, sex, national origin, age or handicap and issue rules, regulations, orders and instructions to carry out its responsibilities under those statutory provisions. EEOC, in turn, has issued regulations that are applicable to the Federal sector. 29 C.F.R. Part 1614. Among other things, part 1614 directs agencies to provide for processing of complaints in accordance with that part and instructions issued by EEOC. 29 C.F.R. § 1614.102 (a)(2). Part 1614 also directs agencies to adopt procedures for processing individual and class complaints of discrimination that meet certain requirements specified in part 1614 and are consistent with that part and instructions issued by EEOC. 29 C.F.R. § 1614.104(a).
The statutory provisions that prohibit discrimination based on race, color, religion, sex, national origin, age or handicap do not address such details as whether employees will be provided materials such as the EEO package at issue in this case and whether this will occur before or after an initial interview is conducted. I find no basis for concluding that that aspect of the EEO process is specifically provided by the statutory provisions that address discrimination in the Federal sector. Thus, there is no basis for finding the statutory provisions that govern EEO in the Federal sector leave no discretion to the Respondent with respect to the process and sequence for providing EEO packages to potential EEO complainants.
I find that the process for providing employees who believe that they have suffered discrimination with an EEO package concerns conditions of employment within the meaning of section 7103(a)(14) of the Statute. Even assuming for the sake of argument that EEO complaints do not constitute grievances within the meaning of section 7114(a)(2)(A) of the Statute as the Respondent asserts, the fact that a matter is not a grievance does not also mean that the matter cannot be a condition of employment for purposes of bargaining obligations under the Statute. Nothing in the definition set forth at section 7103(a)(14) requires a conclusion that a matter must qualify as a grievance in order to constitute a condition of employment. Moreover, to the extent that the Respondent suggests that the court's decisions in Luke Air Force Base and IRS, Fresno, support a broad conclusion that a union that is a party to a collective bargaining agreement that excludes discrimination complaints from the scope of the negotiated grievance procedure has no right to be involved in the EEO process as a whole, I do not find those decisions to [ v57 p739 ] be so expansive. Rather, they are limited to the interpretation and application of section 7114(a)(2)(A) of the Statute. [n4]
Other than asserting that the procedures for issuing EEO packages to employees do not constitute a condition of employment and do not concern a grievance, the Respondent makes no other claims that the matter is not within its duty to bargain. In the absence of any claims other than those that I have rejected above, I find that the change is negotiable. Consequently, the extent of the impact on unit employees is not relevant to whether the Respondent is obligated to bargain. See, e.g., 92 Bomb Wing, Fairchild Air Force Base, Spokane, Washington, 50 FLRA 701, 704 (1995).
It is concluded that by failing to provide the Union with notice and an opportunity to bargain prior to changing the process for providing employees with Request for EEO Counseling packages, the Respondent violated section 7116(a)(1) and (5) of the Statute.
Where management makes a unilateral change regarding a negotiable condition of employment, the effectuation of the purposes and policies of the Statute requires the imposition of a status quo ante remedy, absent special circumstances, in order not to render meaningless the mutual obligation to negotiate concerning changes in conditions of employment. Id. at 705. As the decision to change the process for providing employees with Request for EEO Counseling packages was itself negotiable, a status quo ante remedy is warranted in this case. I find no basis on which to conclude that special circumstances are present that militate against a status quo ante remedy. Consequently, I recommend that a status quo ante remedy be ordered.
Based on the above findings and conclusions, it is recommended that the Authority issue the following Order:
Pursuant to section 2423.41(c) of the Authority's Rules and Regulations and section 7118 of the Statute, it is hereby ordered that the Department of the Air Force, Luke Air Force Base, Arizona, shall:
1. Cease and desist from:
(a) Unilaterally implementing a change in terms and conditions of employment with respect to the procedures for distribution of Request for EEO Counseling packages to bargaining unit employees by the EEO office without providing the American Federation of Government Employees, Local 1547, the exclusive representative of its employees, with advance notice and an opportunity to bargain over the change.
(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