United States, Department of the Air Force, Luke Air Force Base, Arizona (Respondent) and American Federation of Government Employees, Local 1547, AFL-CIO (Charging Party)

[ v58 p528 ]

58 FLRA No. 131

UNITED STATES
DEPARTMENT OF THE AIR FORCE
LUKE AIR FORCE BASE, ARIZONA
(Respondent)

and

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 1547, AFL-CIO
(Charging Party)

DE-CA-00309

_____

DECISION AND ORDER

May 15, 2003

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members [n1] 

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 § 7116(a)(1) and (8) of the Federal Service Labor-Management Relations Statute (the Statute) by holding formal discussions with a bargaining unit employee concerning the mediation of her formal equal employment opportunity (EEO) complaint, without affording the Union notice and an opportunity to be represented as required by § 7114(a)(2)(A) of the Statute. [n2]  The Judge decided the case on a stipulated record and, applying Authority precedent, concluded 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 for the reasons set forth below.

II.     Background and Judge's Decision

A.     Background

      A unit employee filed a formal EEO complaint under the regulations of the Equal Employment Opportunity Commission (EEOC) with the Respondent's EEO Director. [n3]  The complaint alleged several instances of discrimination on the basis of race and sex in relation to the Respondent's failure to select the employee for a promotion and permanent position.

      The Respondent's EEO Director referred the complaint to the Office of Complaint Investigations (OCI) of the Department of Defense (DoD). A mediator with the OCI's alternative dispute resolution (ADR) team was assigned to conduct a mediation conference with the employee and the Respondent. [n4] 

      On or about November 9, 1999, an attorney from the Judge Advocate General's Office (JAG) and a Civilian Personnel Officer held a meeting with the employee to discuss and resolve her EEO complaint. The meeting lasted from 30 minutes to one hour in the Respondent's Legal Office. Settlement options were discussed at the meeting although no resolution of the EEO complaint was reached. See Exhibit 2 (employee's affidavit) at 6.

      On or about February 9, 2000, the OCI mediator held a mediation conference with the Respondent's 56th Medical Group Commander and the employee to discuss her complaint. The mediation conference was held in the Respondent's EEO Conference Room, which is located in the same building as the Respondent's Legal Office. Prior to the mediation conference, the mediator contacted the parties, including the employee, in order to seek their agreement to voluntarily participate in the mediation and to ascertain whether the employee had a [ v58 p529 ] personal representative. [n5]  The employee informed the mediator that she would attend, but that she did not have a personal representative.

      At the outset of the February 9 meeting, the mediator advised the parties that "she did not have authority to decide how the issues in [this] complaint should be resolved . . . and . . . that their discussions were confidential." Judge's Decision at 5. With breaks, the meeting lasted approximately six and one-half hours, of which one hour was spent in a joint session and the remainder in individual caucuses. After conducting an individual caucus with the Commander, the mediator informed the employee that the Commander would agree to give her backpay and an upgrade.

      At the end of the session on February 9, the Commander returned to the joint meeting and agreed to pay the employee backpay and attorney fees. The Commander signed a settlement agreement. However, the employee declined to sign the agreement at that time pending further review. The mediator also informed the parties that she was obligated to show the agreement to the JAG attorney.

      On February 10, the JAG attorney met with the employee in his office. During the meeting, the employee signed the settlement agreement that had been signed by the Commander. [n6]  This meeting lasted approximately 15 minutes. [n7] 

      The Respondent did not notify the Union of, or give it an opportunity to attend, any of the three meetings described above.

B.     Judge's Decision

      The Judge concluded that the three meetings held with the employee concerning her EEO complaint were formal discussions within the meaning of § 7114(a)(2)(A) of the Statute and that the Respondent violated the Statute by failing to provide the Union with notice of and an opportunity to be represented at these three meetings. In so concluding, the Judge relied on the two most recent Authority decisions that addressed the same issue. [n8] 

      The Judge noted that the Respondent did not dispute that all three meetings were discussions within the meaning of § 7114(a)(2)(A). In applying the relevant formality factors set out in Luke and Dover, the Judge found, based on the totality of the circumstances, that all three meetings were formal discussions. In particular, the Judge noted with respect to all three meetings that they were held by acknowledged management representatives, at a location outside of the complainant's work site, and were scheduled in advance with a planned agenda to discuss and/or mediate the employee's EEO complaint. The Judge also rejected the Respondent's claim that the voluntary nature of the meetings undermined the formality of these meetings.

      Consistent with the Authority's decisions in Luke and Dover, the Judge found it unnecessary to address whether the OCI mediator was a representative of the agency since the Respondent stipulated that the JAG attorney was management's representative in the EEO case and that the Personnel Officer and the Commander were management officials. Also, the Judge noted that the Respondent stipulated that during the meetings, all three representatives were acting on behalf of the Respondent.

      Further, consistent with the Authority's decisions in Luke and Dover, the Judge concluded that these meetings concerned grievances within the meaning of § 7114(a)(2)(A). In so doing, the Judge rejected the Respondent's arguments that EEO complaints filed under the EEOC's statutory appeal process are not grievances under the Statute and that § 7114(a)(2)(A) cannot encompass matters that the parties have excluded from their negotiated grievance procedure (NGP).

      Finally, again relying on Luke and Dover, the Judge concluded that the presence of a union representative at a mediation or settlement discussion of an EEO complaint would not conflict with EEOC regulations or the confidentiality provisions of the Administrative Dispute [ v58 p530 ] Resolution Act (ADRA) or other statutes. In reaching this conclusion, the Judge noted the absence of any facts illustrating a direct conflict between the interests of the Union and the employee complainant, as alleged by the Respondent. In this respect, the Judge noted that the Authority has declined to address hypothetical situations, such as those raised by the Respondent, that might arise in other mediation sessions involving EEO complaints.

III.     Respondent's Exceptions

      The Respondent raises similar arguments to those that were previously raised and rejected by the Authority in Luke and Dover.

A.     Jurisdiction

      The Respondent excepts to the Authority's assertion of jurisdiction in this case. The Respondent maintains that the issue presented in this case is "whether the proceedings conducted under the auspices of the EEOC regulations, and not the [Statute], constituted `formal discussions' to which the Union should have been afforded `an opportunity to be represented,'" and that EEOC is solely responsible for the interpretation of its own statute. Exceptions at 5.

B.     Formality Requirement under § 7114(a)(2)(A)

      The Respondent excepts to the Judge's finding that the meetings at issue meet the formality requirement under § 7114(a)(2)(A). In this respect, the Respondent contends that there was no management representative present during the mediation sessions except when the settlement agreement was signed and that the mediator otherwise held individual sessions with the parties in separate rooms. The Respondent asserts that although the OCI mediator was a DoD employee, the mediator was a neutral party and not a representative of management. Further, the Respondent contends that the meetings occurred outside the employee's work area and at agreed-upon locations. The Respondent also maintains that there was no formal agenda for the mediation sessions and that the employee's attendance at the mediation sessions was not mandatory. In addition, the Respondent contends that the EEO complaint did not involve conditions of employment which generally affect unit employees.

C.     Whether the EEO Complaint Concerns a Grievance

      The Respondent excepts to the Judge's finding that the meetings at issue concerned a "grievance" within the meaning of § 7114(a)(2)(A). The Respondent maintains that the Ninth Circuit's decisions on this matter should be controlling in this case. Specifically, the Respondent relies on IRS, Fresno Serv. Ctr. v. FLRA, 706 F.2d 1019 (9th Cir. 1983) (IRS, Fresno v. FLRA) and Luke Air Force Base v. FLRA. The Respondent also asserts that NTEU v. FLRA, 774 F.2d 1181 (D.C. Cir. 1985), in which the D.C. Circuit held that the term "grievance" encompasses statutory appeal procedures, is distinguishable from the Ninth Circuit cases since it involved Merit Systems Protection Board (MSPB) proceedings and not an EEO complaint under Title VII of the Civil Rights Act, 42 U.S.C. § 2000e-16. In addition, the Respondent contends that when an employee elects to pursue an EEO complaint pursuant to a statutory appeals procedure under § 7121(d), the EEO complaint is no longer considered a "grievance" under the Statute for purposes of § 7114(a)(2)(A). Exceptions at 21.

      Further, the Respondent maintains that the legislative history of § 7103(a)(9) "contradicts the broad interpretation of `grievance' adopted by the [Authority] and bolsters Respondent's position" that the term grievance is limited to complaints arising under the NGP and not "claims pursued under a statutory procedure after a § 7121(d) election." Id. at 21-22. In this respect, the Respondent quotes the language in the House Report that although § 7103(a)(9) "is virtually all-inclusive in defining `grievance,' section 7121 excludes certain grievances from being processed under a negotiated grievance procedure, thereby limiting the net effect of the term." Id. at 22 (quoting H.R. Rep. No. 95-1403, at 40 (1978)).

      In addition, the Respondent maintains that the Union had no right to participate in the mediation since the parties specifically excluded discrimination claims from their negotiated grievance procedure. The Respondent maintains that by virtue of this exclusion of EEO claims from coverage under the NGP, "the [U]nion by contract had no right to be involved in the mediation" sessions in this case. Exceptions at 7.

D.     ADRA, Privacy Act and Other Laws

      The Respondent excepts to the ALJ's finding that the Union's presence at mediation and settlement discussions would not conflict with EEOC regulations, the ADRA and other statutes concerning the confidentiality of employee records. Relying on the D.C. Circuit's statement in NTEU v. FLRA, 774 F.2d at 1189 n.12, that Congress has explicitly decided that a "direct conflict" between the rights of identifiable victims of discrimination and the interests of the bargaining unit presumably should be resolved in favor of the employee, the Respondent maintains that the complainant's individual [ v58 p531 ] interest in confidentiality must prevail over the Union's collective interest in the bargaining unit under § 7114(a)(2)(A).

      The Respondent notes that under EEOC regulations, only persons "with direct knowledge relating to the complaint" are allowed to attend hearings under 29 C.F.R. § 1614.109(e). The Respondent argues that "implicit in the EEOC's position on hearings is that attendance at, or participation in, all proceedings leading up to the hearing, including mediations and OCI investigations, [is] limited to those individuals with direct knowledge relating to the complaint and the complainant's representative." Exceptions at 11. The Respondent emphasizes that the "EEOC has never adopted a rule allowing for the [u]nion's presence at its hearings or . . . involve[ment] in its processes and indeed, has adopted a practice to the contrary," unless the union is the complainant's designated representative under § 1614.605(a). Id. at 12.

      The Respondent maintains that permitting the Union to be present at EEO mediation sessions would violate the ADRA. The Respondent contends that with the passage of the ADRA, which "legislated confidentiality protections applicable" to mediation sessions, Congress "recogni[zed] that protecting confidentiality during [such sessions] is of paramount importance." Id. at 13. The Respondent argues that "[t]here is nothing" under the ADRA's definition of party that would qualify the Union to participate in the mediation sessions as a party. Id. at 15. In this respect, the Respondent maintains that "nothing in § 7114" precludes Union representatives from disclosing confidential matters discussed at such mediation sessions. Id. at 14.

      In addition, the Respondent argues that given the "lack of predictability" regarding what may arise in mediation sessions, "other statutory requirements for confidentiality must be considered." Id. at 15. In this respect, the Respondent contends that the Privacy Act, 5 U.S.C. § 552a(b), requires agencies to maintain the confidentiality of the substance of the complaint and that the Respondent would be unable to abide by this requirement if non-parties such as the Union were allowed to attend the mediation sessions. The Respondent asserts that the Office of Personnel Management's (OPM's) list of routine use exceptions to the Privacy Act does not expressly provide for release or disclosure of employee information contained in any of its systems of records to union representatives.

      Also, the Respondent maintains that the Public Health Services Act requires that agencies maintain records relating to employees' drug and alcohol abuse in strict confidentiality, and this law would be violated by the Union's presence at mediation sessions. [n9]  Specifically, the Respondent maintains that it "cannot know when and which individual (complainant or witness) might reveal confidential information regarding drug abuse or alcoholism [in a mediation session], but the potential is higher in interviews where an individual has suffered an adverse action and is providing a defense to that action." Exceptions at 17. In the same vein, the Respondent asserts that the Union's presence at mediation sessions would conflict with its responsibilities under Executive Order 13145 to maintain the confidentiality of an employee's genetic information. [n10]  The Respondent asserts that it would be unable to maintain the confidentiality of such information if it were disclosed by a complainant in a mediation session attended by the Union's representative.

      Lastly, the Respondent maintains that statutes governing the treatment of individuals with disabilities, such as the Rehabilitation Act, 29 U.S.C. § 701 et. seq., or Americans with Disabilities Act, 42 U.S.C. § 12101 et. seq., require agencies to protect the confidentiality of employee records pertaining to medical examinations and conditions and that the Respondent would be unable to maintain the confidentiality of such information if it were disclosed by a complainant in a mediation session attended by the Union's representative.

IV.     General Counsel's Opposition

      The GC argues that based on Authority precedent set forth in Luke and Dover, the Authority should deny the Respondent's exceptions, which were all previously raised and rejected in Luke and Dover.

V.     Analysis and Conclusions

A.     Summary

      In order for a union to have the right to representation under § 7114(a)(2)(A), there must be: (1) a discussion; (2) which is formal; (3) between a representative of the agency and a unit employee or the employee's representative; (4) concerning any grievance or any personnel policy or practice or other general condition of employment. Dover, 57 FLRA at 306; Luke, 54 FLRA at 723; Gen. Servs. Admin., 48 FLRA 1348, 1354 (1994) (GSA). The Respondent challenges the Judge's decision on the following grounds: (1) the [ v58 p532 ] Authority lacks jurisdiction to address this matter since it involves proceedings governed by EEOC and its regulations; (2) the mediation and settlement discussions did not meet the formality requirements under § 7114(a)(2)(A); (3) the mediation and settlement discussions did not relate to or concern a grievance under § 7114(a)(2)(A); and (4) the Union's presence at such mediation and settlement sessions conflict with the ADRA and other statutes concerning confidentiality.

      As to the first claim, we find that the Authority has jurisdiction to resolve the unfair labor practice complaint before us alleging a violation of § 7114(a)(2)(A) of the Statute.

      As to the second claim, we find that the meetings at issue here meet the formality requirement of § 7114(a)(2)(A).

      As to the third claim, we conclude that the meetings concern a "grievance" for purposes of § 7114(a)(2)(A).

      As to the fourth claim, we reject the Respondent's claim that there is a conflict between the Union's institutional rights under § 7114(a)(2)(A) and the employee's individual rights under the ADRA and other statutes governing confidentiality that warrants exclusion of the Union from these sessions.

      Accordingly, we find that the Respondent violated the Statute as alleged in the complaint by failing to provide the Union notice of, and an opportunity to attend, the meetings in this case.

B.     Jurisdiction

      We reject the Respondent's claim that the Authority lacks jurisdiction to address this matter. Under § 7105(a)(2)(G) of the Statute, the Authority is authorized to conduct hearings and resolve complaints of unfair labor practices. Under § 7118 of the Statute, the Authority has responsibility to investigate and conduct hearings regarding unfair labor practice allegations and to resolve such allegations.

      In this case, the Charging Party filed a charge alleging that the Respondent committed an unfair labor practice by violating § 7116(a)(1) and (8). The General Counsel issued a complaint based on the charge. Nothing in the Respondent's arguments regarding the authority of the EEOC to examine allegations of discrimination limits or diminishes the Authority's responsibilities to determine, as authorized by the Statute, whether an agency has committed an unfair labor practice in the course of conducting formal discussions relating to a unit employee's formal EEO complaint. See United States Dep't of the Air Force, Luke Air Force Base, Ariz., 57 FLRA 730, 732 (2002). Accordingly, we deny this exception.

C.     Formality of the Meetings

      In order to determine whether meetings constitute formal discussions under § 7114(a)(2)(A), the totality of the circumstances presented must be examined and the following illustrative factors are considered: (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) the length of the discussions; (6) whether a formal agenda was established; and (7) the manner in which the discussions were conducted. Dover, 57 FLRA at 307.

      Examining the totality of the circumstances, we find that the three meetings at issue constitute formal discussions. Regarding the first meeting with the employee (the November 9 meeting), the following factors are persuasive on this point. First, the meeting was held by a JAG attorney, who the Respondent stipulated was management's representative with respect to this EEO complaint. Second, the Civilian Personnel Officer, who the Respondent stipulated was acting on behalf of the Respondent, was also present at the meeting. Third, the the meeting had an agenda to discuss and resolve the EEO complaint. Fourth, the meeting was held in the Respondent's Legal Offices, away from the employee's work site.

      Regarding the second meeting facilitated by the mediator on February 9, this meeting is similar to the mediation sessions held in Dover and Luke. In this respect, the meeting had an agenda to mediate and resolve the EEO complaint; the meetings were held in the Respondent's Legal Offices, away from the employee's work site; attendees at the meeting included a Commander with authority to sign a settlement agreement on the Respondent's behalf, and a mediator, who attempted to resolve the complaint; the meeting followed a traditional mediation format, primarily consisting of individual caucuses with the parties and joint sessions; and the meeting was scheduled well in advance. [n11] 

      Lastly, the third meeting on February 10 between the employee and JAG attorney was undisputably a continuation [ v58 p533 ] of the mediation session on February 9 and was held so that the employee could sign the settlement agreement, which had already been signed by the Commander the day before. Further, like the other two meetings, the February 10 meeting was held by a management representative (the JAG attorney who conducted the November 9 meeting); the meeting was held in the Respondent's Legal Offices, away from the employee's work site; the meeting was scheduled in advance; and the meeting had an agenda of resolving the EEO complaint and signing the settlement agreement by the employee.

      We reject the Respondent's arguments that the mediation sessions were not formal because the mediator was not an employee, supervisor or management representative of the Respondent and had no authority to change unit employees' conditions of employment. In Luke, the Authority found that since the respondent was represented at all times by a JAG attorney during the mediation sessions, it was unnecessary to address the respondent's contentions that the OCI investigator was not a management representative. Luke, 54 FLRA at 724-25; Dover, 57 FLRA at 307. Consistent with Luke, we find it unnecessary to determine the status of the OCI mediator in this case given the presence and involvement of the JAG attorney and Commander in the mediation sessions, both of whom the Respondent had stipulated were management representatives.

      Additionally, we reject the Respondent's claim that the discussions were not formal because there was no management representative present during the mediation sessions except when the settlement agreement was signed and the mediator otherwise held individual sessions with the parties in separate rooms. As in Dover, the stipulation here reflects that in addition to short joint sessions during the course of the mediation, the mediator primarily held separate meetings with the parties in which she relayed their respective positions regarding proposed settlement terms. Moreover, it is evident that the employee and Commander 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," in the same room. Luke, 54 FLRA at 725-26.

      Also, we reject the Respondent's claim that the mediation and settlement discussions were not formal because there was no formal agenda. As we previously held in Luke, the agenda requirement is met to the extent the record evidence demonstrates that the mediation session to discuss the EEO complaint was planned in advance and had a set of clearly-defined objectives and procedures that were communicated to all the participants. 54 FLRA at 727-28. It is undisputed that all three meetings were planned in advance and that the objective in all three sessions was to resolve the EEO complaint. Lastly, we reject the Respondent's claim that the mediation and settlement discussions were not formal since attendance was not mandatory at any meeting. Consistent with Luke, even if attendance were not mandatory, the other indicia of formality, as discussed above, support our conclusion that the three sessions were formal discussions. 54 FLRA at 728. Accordingly, we deny the Respondent's exception that these meetings were not formal.

D.     The Mediation Concerned a "Grievance"

      In asserting that EEO complaints pursued through a statutory procedure are not grievances under § 7114(a)(2)(A), the Respondent maintains that the Ninth Circuit's decisions in Luke AFB v. FLRA and IRS, Fresno v. FLRA should be controlling in this case. In Dover, the Authority revisited and thoroughly reviewed the issue of whether EEO complaints pursued through a statutory appeals procedure are grievances under § 7114(a)(2)(A) and decided to adhere to its view that the scope of the term "grievance" encompasses such complaints, based on the express language of the Statute, the legislative history of the Statute, and the purpose of the Statute's provision for union representation under § 7114(a)(2)(A). See Dover, 57 FLRA at 308-09. Similarly, in its recent decision affirming the Authority in Dover AFB v. FLRA, the D.C. Circuit rejected the Ninth Circuit's precedent and reaffirmed its decision in NTEU v. FLRA that "grievance" encompasses complaints filed pursuant to a NGP and those filed pursuant to alternative statutory procedures. 316 F.3d at 285-86.

      We reaffirm the Authority's previous view set forth in Dover, as affirmed by the D.C. Circuit in Dover AFB v. FLRA, that the broad definition of "grievance" under the Statute encompasses complaints filed under a NGP as well as complaints filed under alternative statutory procedures of the EEOC. [n12]  For the reasons set forth in those decisions, and those that follow, we respectfully disagree with the Ninth Circuit's determination to the contrary that the formal discussion right under § 7114(a)(2)(A) does not apply to complaints filed under EEOC's statutory procedure because they are discrete and separate from the grievance process. [ v58 p534 ]

      We reject the Respondent's assertion that the D.C. Circuit's holding in NTEU v. FLRA that the term "grievance" encompasses statutory appeal procedures is distinguishable from the Ninth Circuit cases since it involved an MSPB proceeding and not an EEO complaint under Title VII. In Dover AFB v. FLRA, the D.C. Circuit recently rejected this very argument, noting that its "analysis in NTEU v. FLRA relied upon the text, structure, and legislative history of the [Statute] and did not rest on the type of grievance in question." 316 F.3d at 285 (citing NTEU v. FLRA, 774 F.2d at 1185-88).

      We also reject the Respondent's contention that when an employee elects under § 7121 of the Statute to pursue an EEO complaint pursuant to a statutory appeals procedure, the EEO complaint is no longer considered a "grievance" under the Statute for purposes of § 7114(a)(2)(A). In particular, we affirm our finding that § 7121 demonstrates that a grievance encompasses complaints filed through the NGP as well as those filed under alternative statutory procedures, in light of the fact that § 7121(d) and (e) specifically provide that "aggrieved employees affected by illegal discrimination may raise these matters under either a statutory procedure or a NGP, but not both." 57 FLRA at 308. Section 7121(a) "recognizes that discrimination complaints filed under statutory procedures are in fact grievances and provides that this class of grievances may be processed through either a contractual or a statutory procedure." Id. (citing NTEU v. FLRA, 774 F.2d at 1187-88) ("[T]he statutory procedures referred to in § 7121(d) and (e) are also procedures for resolving grievances.") In Dover AFB v. FLRA, the D.C. Circuit affirmed our interpretation and its holding in NTEU v. FLRA that based upon the text, structure and legislative history of the Statute, the term grievance includes both complaints filed pursuant to a NGP and those filed pursuant to alternative statutory procedures. 316 F.3d at 285.

      In the same vein, we reject the Respondent's claim that the EEO complaint here does not concern a grievance given the exclusion of EEO claims from coverage under the parties' NGP. 57 FLRA at 309-10. In this regard, the Respondent maintains that by virtue of this exclusion of EEO claims from coverage under the NGP, "the [U]nion by contract had no right to be involved in the mediation" sessions in this case. Exceptions at 7

      Consistent with Luke and Dover, we affirm our previous holding that the statutory definition of a grievance is not dependent on the scope of a negotiated grievance procedure. Luke, 54 FLRA at 730; Dover, 57 FLRA at 309. As we noted in Dover, a particular subject matter may be a grievance for the purpose of a union's formal discussion right even though it cannot be processed through the contractual grievance procedure. Id. In addition, as previously explained in Dover, we reject any claim that the exclusion of EEO claims from the NGP is tantamount to a waiver of the Union's interest in such claims. Id. at 310. Rather, the Union's agreement to exclude such matters from the NGP may represent the Union's decision to avoid the expenditure of funds in pursuing EEO grievances to arbitration given the availability of the federally subsidized EEO statutory procedure. Id. In this regard, we have found that a union may agree to exclude such matters from the NGP in reliance on its right under § 7114(a)(2)(A) to attend formal discussions involving EEO complaints. Id.

      Accordingly, we deny the Respondent's exceptions that for purposes of the formal representation right under § 7114(a)(2)(A), the term grievance does not include EEO complaints filed under EEOC's statutory appeal procedure.

E.    ADRA and Other Laws Concerning
        Confidentiality

      We also reject the Respondent's claims that affording the Union its § 7114(a)(2)(A) right to representation at mediation and settlement discussions concerning the formal EEO complaint in this case creates a conflict with the employee's right to confidentiality as reflected in the ADRA and other laws, rules or regulations.

      In addressing the ADRA and EEOC regulations in Luke and Dover, the Authority concluded that the presence of a union representative at the mediation of an EEO complaint was not inconsistent with either the ADRA or EEOC regulations. In this respect, the Authority in Dover concluded that, under the terms of the ADRA, whether a union is deemed a "party" or a "nonparty participant," the ADRA does not prohibit the union's attendance at a mediation session. Here, as in Dover, the Respondent "has pointed to no provision in the EEOC's regulations or the [ADRA] that precludes union attendance at the mediation of an EEO complaint." Id. at 310. We also note that in its recent decision in Dover AFB v. FLRA, the D.C. Circuit stated that it was not clear whether the ADRA was applicable, noting that the ADRA is voluntary and merely supplements, rather than limits, other available ADR techniques. Dover AFB v. FLRA, 316 F.3d at 286 n.1.

      More specifically, we address the Respondent's reliance on NTEU v. FLRA and its argument that there is a direct conflict between the rights of the employee and the Union that must be resolved in favor of the employee. [ v58 p535 ]

      In Dover, the Authority noted that "the United States Court of Appeals for the District of Columbia and the Authority have recognized that an appropriate resolution is required in the event of a direct conflict between individual and institutional rights." Dover, 57 FLRA at 309 (citing NTEU v. FLRA, 774 F.2d at 1189 n.12). [n13]  See also United States Dep't of Justice, Bureau of Prisons, Federal Corr. Inst. (Ray Brook, N.Y.), 29 FLRA 584, 590 (1987) (if there is a conflict between rights under § 7114(a)(2)(A) and those under other statutes, the Authority will consider that conflict in determining whether section § 7114(a)(2)(A) has been violated), aff'd sub nom. AFGE, Local 3882 v. FLRA, 865 F.2d 1283 (D.C. Cir. 1989).

      We agree with the Judge's finding that the facts of this case do not present any conflict, let alone a direct conflict, between the Union's institutional rights and the employee's rights to confidentiality in mediation and settlement discussions. [n14]  See Judge's Decision at 12. Further, the Respondent's arguments on this point do not dispute the lack of a direct conflict. Rather, the Respondent presents hypothetical situations where the Union's presence at mediation and settlement discussions could create potential conflicts with certain laws governing confidentiality. Moreover, we also note that, as the D.C. Circuit stated in Dover AFB v. FLRA in response to "the Air Force's doubt that union representatives can keep confidential matters confidential[,] [u]nion representatives are often in the position of having to maintain confidentiality." Dover AFB v. FLRA, 316 F.3d at 287. Here, the Respondent makes no claim, and there is no indication in the stipulated record, that the Union would have objected to or failed to comply with any confidentiality requirements imposed by the mediator in this case.

      We reject the Respondent's claim that the Union's presence at a mediation session would violate the Privacy Act. In essence, the Respondent maintains that the Union's presence at such mediation and settlement discussions would necessarily result in the disclosure of the nature or substance of the complaint in violation of the Privacy Act. In rejecting these claims, we adhere to the D.C. Circuit's view that the Privacy Act concerns the confidentiality of records and does not address what parties may attend an ADR proceeding. Id. at 286.

      Furthermore, the Authority addressed and rejected analogous claims in Gen. Servs. Admin., 53 FLRA 925, 933-36 (1997) (GSA II). In addressing those claims, the Authority noted that "[t]he Privacy Act, 5 U.S.C. § 552a, restricts the disclosure, and redisclosure, of personally identifiable records." [n15]  53 FLRA at 933. As relevant here, the Authority noted that the courts hold that a "disclosure" within the meaning of the Privacy Act is the actual retrieval of any information from a "record" within the meaning of the Act. 53 FLRA at 934. In this respect, the Authority noted that in the leading case involving this "actual retrieval" standard, the court held that for a disclosure to be covered by 5 U.S.C. § 552a(b), `there must have initially been a retrieval from the system of records which was at some point a source of the information." Id. (citing Savarese v. United States Dep't of Health, Education and Welfare, 479 F. Supp. 304, 308 (N.D.Ga. 1979), aff'd mem. sub nom, Savarese v. Harris, 620 F.2d 298 (5th Cir. 1980), cert. denied, 449 U.S. 1078 (1981)).

      In finding that the Union's presence was not inconsistent with the Privacy Act, the Authority found that under the actual retrieval standard "the [a]gency [ v58 p536 ] ha[d] not established that the Union's acquiring knowledge of th[e] [nature of the employee's complaint appealing an adverse action] as a result of the [a]gency providing notice of, and the Union's attendance at, settlement negotiations would be related to information in, or retrieved from, a `record' within the meaning of the Privacy Act." 53 FLRA at 935. Similarly, with respect to the agency's contention that sensitive information would be disclosed to the Union at such meetings, the Authority found that the agency had not demonstrated that "such sensitive information would be information contained in or retrieved from a `record' within the meaning of the Privacy Act." Id.

      Consistent with the actual retrieval standard applied by the courts and the Authority in GSA II, we find in this case that the Respondent has not demonstrated that the Union's acquisition of knowledge of the issues raised in the complaint would be related to the actual retrieval of such information from a "record" within the meaning of the Privacy Act.

      In addition, we reject the Respondent's claims the Union's presence at the mediation session conflicts with the confidentiality provisions under the Public Health Services Act, protecting an employee's drug and alcohol abuse records; Executive Order 13145, protecting an employee's genetic information; or the Rehabilitation Act and EEOC regulations protecting an employee's medical records. The Respondent presented no evidence that this case involved any information or records protected from disclosure by agencies by these laws, and in turn that any such improper disclosure would have occurred here had a Union representative attended the mediation and settlement discussions. In this respect, we find "the Union's statutory right to be represented at such [mediation and settlement discussions] cannot be nullified on the speculative grounds of potential privacy problems under the Privacy Act." GSA II, 53 FLRA at 936. Rather, such hypothetical issues are more appropriately addressed in an actual case when squarely presented. See Navegar, Inc. v. United States, 103 F.3d 994, 998 (D.C. Cir. 1997) (declining to decide cases before they are ripe avoids adjudicating abstract disagreements, enhances judicial economy, and ensures that an adequate record exists to support an informed decision).

      In conclusion, we find, in agreement with the Judge and for the reasons stated above, that the Respondent committed the unfair labor practices alleged in the complaint in violation of § 7116(a)(1) and (8) of the Statute.

VI.      Order

      Pursuant to section 2423.41 of our Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, United States Department of the Air Force, 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, AFL-CIO, 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 discussions to mediate settlement of formal EEO complaints filed by bargaining unit employees.

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

      2. Take the following affirmative actions in order to effectuate the purposes of the Statute:

           (a) Provide the American Federation of Government Employees, Local 1547, AFL-CIO, 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 discussions to mediate settlement of formal EEO complaints filed by bargaining unit employees.

           (b) Post at facilities at Luke Air Force Base copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt, such forms shall be signed by the Commander, Luke Air Force Base and 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 these Notices are not altered, defaced, or covered by any other material.

           (c) Pursuant to § 2423.41(e) of the Authority's Regulations, notify the Regional Director of the Denver Region, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply. [ v58 p537 ]


NOTICE TO ALL EMPLOYEES
POSTED BY ORDER OF THE
FEDERAL LABOR RELATIONS AUTHORITY

The Federal Labor Relations Authority has found that the United States 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 EMPLOYEES THAT:

WE WILL NOT fail or refuse to provide the employees' exclusive representative, American Federation of Government Employees, Local 1547, AFL-CIO (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 of 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 by the Federal Service Labor-Management Relations Statute.

WE WILL provide the Union advance 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 any of its provisions, they may communicate directly with the Regional Director, Denver Region, 1244 Speer Boulevard, Suite 100, Denver, CO 80204 and whose phone number is: (303) 844-5226.


Concurring Opinion of Member Armendariz:

      I write separately to comment more specifically on two matters. First, I would construe the Respondent's argument --that the Union had no right to be involved in the mediation and settlement discussions based on the exclusion of EEO claims from coverage under the negotiated grievance procedure -- as a claim that the Union waived its rights with regard to these matters. In essence, the Respondent is reiterating the same argument made in Dover. In this regard, the D.C. Circuit stated in Dover:

The FLRA also rejected the Air Force's argument that the exclusion of EEO disputes from the NGP amounts to a waiver of any rights Local 1709 has with respect to such matters. The FLRA remarked that Local 1709 may have excluded these matters simply to avoid some of the expenses related to processing EEO grievances.

Dover AFB v. FLRA, 316 F.3d at 284. The court did not go on to further address this argument. However, I note that, as with waivers of other statutory rights, in order to constitute a waiver of a union's statutory right under § 7114(a)(2)(A) to be present at a formal discussion, a union's action must be "clear and unmistakable." United States Nuclear Regulatory Commission, 21 FLRA 765, 768 (1986).

      The Authority found that a union waived its § 7114(a)(2)(A) right to be represented at certain formal discussions in National Labor Relations Board, 46 FLRA 107 (1992) (NLRB). There, based on record testimony, the Authority concluded that, with full knowledge of the purpose of the interviews, the union had told management that it did not need to know about the interviews of unit employees if they were not targets of an investigation. NLRB, 46 FLRA at 111. The Authority held that, in these circumstances, the union had "clearly and unmistakably waived its right" under § 7114(a)(2)(A) to be represented at those interviews. Id. at 112.

      This is in sharp contrast to the instant case, in which there is no testimony or other evidence relating specifically to the Union's alleged waiver of its right under § 7114(a)(2)(A). Rather, the only evidence concerns the Union's agreement to exclude EEO claims from coverage under the parties' grievance procedure negotiated under § 7121. Arguably, a union's agreement to exclude EEO claims from coverage under the parties' NGP might be read as an indication that the union was also disclaiming interest in attending formal discussions [ v58 p538 ] involving EEO claims. However, a union's agreement to exclude EEO claims from coverage under the parties' NGP, standing alone, does not rise to the high standard of "clear and unmistakable" intent necessary to waive its statutory right to be represented at formal discussions under § 7114(a)(2)(A) of the Statute. In this regard, I emphasize that the record before the Authority contains no other evidence, such as bargaining history, that might be relevant in this regard. Accordingly, the record in this case does not support a conclusion that the Union waived its § 7114(a)(2)(A) right.

      Second, I agree with the Respondent that protecting the employee's confidentiality in this arena contributes to the success and resolution of EEO complaints. In this connection, where a direct conflict between a union's institutional rights and an employee's right to confidentiality in mediation and settlement discussions exists, I would be inclined to agree with the D.C. Circuit that the rights of the employee should presumably prevail. I note that such a direct conflict might arise in a variety of situations, including, for example, where an employee unequivocally requests that the exclusive representative not be present at a mediation session of a formal EEO complaint. Of course, a determination as to whether there is a direct conflict between the rights of an employee and the rights of a union requires an assessment of the facts presented in each case. Based on the stipulated record before the Authority, the facts here demonstrate no such conflict, direct or otherwise.

      Moreover, measures can be taken to ensure that confidentiality is addressed and maintained. In this respect, I would expect participants in mediation proceedings, including union representatives, to comply with any confidentiality requirements imposed by the ADRA or a mediator in any particular circumstance. In this respect, I note that the guidance promulgated by the Federal Alternative Dispute Resolution Council/Department of Justice on the ADRA suggests that parties address the lack of protection for statements by parties made in joint sessions under 5 U.S.C. § 574(b)(7) through the use of a contract. The guidance also notes that confidentiality agreements are a standard practice in many ADR contexts, and their use is encouraged in Federal dispute resolution processes where confidentiality of party-to-party communications is desired. Further, the EEOC also encourages participants to sign confidentiality agreements covering the mediation of EEO complaints. In the same vein, I would expect union representatives to sign confidentiality agreements as well.


Dissenting Opinion of Chairman Cabaniss:

      Consistent with the views set out in my dissent in United States Dep't of the Air Force, 436th Airlift Wing, Dover Air Force Base, Dover, Del., 57 FLRA at 312-14, I would dismiss the complaint in this case as not involving a formal discussion under § 7114(a)(2)(A), and therefore dissent from the majority decision here.


[ v58 p539 ]


Office of Administrative Law Judges

DEPARTMENT OF THE AIR FORCE
LUKE AIR FORCE BASE, ARIZONA
Respondent

and

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES,
LOCAL 1547, AFL-CIO
Charging Party

Case No. DE-CA-00309

Hazel E. Hanley, Esquire
For the General Counsel

Phillip G. Tidmore, Esquire
For the Respondent

Brock V. Henderson, President, AFGE Local 1547
For the Charging Party

Before:     RICHARD A. PEARSON
Administrative Law Judge

DECISION

Statement of the Case

      This unfair labor practice case was submitted in accordance with section 2423.26(a) of the Federal Labor Relations Authority's Rules and Regulations, based on a waiver of a hearing and a stipulation of facts by the parties, who have agreed that no material issue of fact exists.

      The unfair labor practice complaint issued by the General Counsel alleges that the Respondent violated section 7116(a)(1) and (8) of the Federal Service Labor-Management Relations Statute (the Statute), 5 U.S.C. § 7116(a)(1) and (8), by holding formal discussions with a bargaining unit employee concerning the mediation of her formal equal employment opportunity (EEO) complaint without providing the American Federation of Government Employees, Local 1547, AFL-CIO, with notice and an opportunity to be represented as required by section 7114(a)(2)(A) of the Statute.

      The Respondent's answer denied any violation of the Statute. Among other things, the Respondent asserted that confidential mediation sessions involving complaints of employment discrimination, brought under one of the statutes administered by the Equal Employment Opportunity Commission, are not formal discussions or grievances which labor organizations must be allowed to attend.

      A hearing was scheduled on these issues, but the parties filed competing motions to dismiss and for summary judgment, and the hearing was indefinitely postponed. Subsequently, the parties were able to agree on a joint stipulation of facts, making the hearing unnecessary. In their stipulation, the parties have agreed that the stipulation, along with the exhibits attached thereto, constitute the entire record in this case. The Respondent and the General Counsel have also submitted legal briefs in support of their respective positions. Based on this record, I make the following findings of fact, conclusions of law, and recommendations.

Findings of Fact

      The Stipulation of Facts, consisting of seventy-two numbered paragraphs, is incorporated in its entirety as my findings of fact. Retaining the original numbering but omitting references to exhibits attached to the stipulation, I cite below those portions of the stipulation that I find most relevant to my decision.

1.     Luke Air Force Base (Respondent) is an activity of the United States Department of the Air Force, an agency under 5 U.S.C. § 7103(a)(3).
2.     The American Federation of Government Employees, Local 1547, AFL-CIO (the Union or Local 1547), is a labor organization under 5 U.S.C. § 7103(a)(4).
3.     Local 1547 is the exclusive representative of a unit of employees appropriate for collective bargaining at the Respondent.
20.     Denise F. Christopher is an employee under 5 U.S.C. § 7103(a)(2) and a member of the bargaining unit described in paragraph 3.
22.     On or about May 11, 1997, Christopher filed a formal EEO complaint against the Respondent under 29 CFR Part 1614 with H.K. Brown, EEO Director at Respondent and certified . . . that she had not filed a grievance under 5 U.S.C. § 7121(d).
23.     [In] 1993 [the Department of Defense] consolidat[ed] Army, Navy, and Air Force civilian personnel regulations, personnel administrative functions and support services originally provided by the various components of the Department of Defense. Specifically, the [action] consolidated the Army, Navy, and Air Force personnel investigative functions in the Civilian Personnel Management Service (CPMS). The component authorized to investigate Equal Employment Opportunity (EEO) complaints is the Office of Complaint [ v58 p540 ] Investigations within the CPMS, Department of Defense. In January 1999, OCI . . . established an alternative dispute resolution (ADR) team. The ADR team consists of seven mediators who are located in the five regional offices. The seven mediators conduct OCI mediation conferences for each EEO complaint, when agreed upon by the parties, pending investigation. When the parties and their respective representatives have agreed to have an OCI mediation conference, the matter is assigned to a mediator on the ADR team, who then contacts the parties to schedule the OCI mediation conference. The military activity involved in the scheduled mediation conference provides appropriate facilities and administrative support.
24.     [At all times relevant to this decision], the persons listed below occupied the positions opposite their names.
Captain Jon Burgess                Assistant Staff Judge
                     Advocate (JAG Attorney)
Joanne Elrod Civilian Personnel Officer
Col. Michael Lischak      56 Medical Group
                     Commander
Edna "Faye" Patitucci Personnel Management
                     Specialist, Department of
                     Defense, OCI, ADR Team
                     Sacramento, California
25.     [At all relevant times], Elrod and Colonel Lischak were supervisors and/or management officials under 5 U.S.C. § 7103(a)(10) and (11) at the Respondent, and Captain Burgess was management's representative.
26.     [At all relevant times], Patitucci was not an employee of Respondent Luke Air Force Base or the Department of the Air Force; however, she is employed by the Department of Defense. Respondent's EEO Director, H.K. Brown, requested the services of OCI, and Patitucci was assigned to conduct a mediation conference with Denise Christopher and Luke Air Force Base Management to resolve Christopher's complaint. . . .
27.     [At all relevant times, Elrod, Captain Burgess and Colonel Lischak] were acting on behalf of Respondent, and Patitucci was present as an OCI mediator, acting in response to the parties' [request for] mediation of Christopher's EEO complaint.
29.     Local 1547 and Respondent are parties to a collective bargaining agreement covering employees in the bargaining unit described in paragraph 3. Article XXVI, Section B, Paragraph f excludes EEO Complaints from the parties' negotiated grievance procedure.                          
31.     On or about November 9, 1999, Respondent, by Burgess and Elrod, held a meeting with Christopher in the Legal Office, Building 1150, at Respondent to discuss Christopher's EEO complaint.
32.     Christopher did not designate a representative from Local 1547 at the [November 9] meeting.
33.     Neither Elrod nor Burgess ordered Christopher to attend the [November 9] meeting . . . but Christopher attended the meeting in order to resolve her EEO complaint.
34.     Respondent did not notify Local 1547 that the [November 9] meeting . . . involved the EEO complaint of Christopher, a bargaining unit employee, nor did Respondent give Local 1547 the opportunity to attend that meeting.
36.     The [November 9] meeting . . . lasted from 30 minutes to one hour.
37.     On or about February 9, 2000, Respondent, by Patitucci and Lischak, held a meeting with Christopher in the Equal Employment Opportunity conference room, Building 1150, at Respondent to discuss Christopher's EEO complaint.
38.     Prior to the February 9 meeting . . . Patitucci contacted Respondent's EEO Office for logistical support, including a location to mediate Christopher's EEO complaint. Patitucci requested the names and telephone numbers of officials at Respondent who were required in the coordination of the OCI mediation conference. Upon receipt of the appropriate names and telephone numbers, Patitucci contacted the parties, including Christopher, in order to seek their agreement to voluntarily participate in mediation. Patitucci requested Burgess to provide her with boilerplate language for settlement. Patitucci contacted Christopher to ask if she had a representative, and if so, the name and telephone number. Patitucci prepared and sent out a letter to Christopher concerning the OCI mediation conference and she requested Christopher to provide certain information.
40.     Prior to the [February 9] meeting . . . Patitucci learned from Christopher that she had no representative and she wished to participate in the OCI mediation conference. [ v58 p541 ]
41.     [At the outset of] the February 9 meeting . . . Patitucci advised Lischak and Christopher . . . that she did not have authority to decide how the issues in Christopher's EEO complaint should be resolved. . . . Patitucci explained to Lischak andChristopher that their discussions were confidential. . . .
44.     At about 10:30 to 11:00 a.m., during the February 9 meeting . . . Patitucci conducted a "breakout" or caucus session with Lischak . . . .
45.     When Patitucci resumed her breakout session with Christopher, . . . she informed Christopher that Lischak had agreed to give her back pay and she would receive an upgrade.
47.     During her lunch break from the February 9 meeting          . . . Christopher sent a draft of the settlement agreement to Attorney Petit [a private attorney whom Christopher had consulted at various times concerning her EEO complaint]. . . . Christopher did not tell Patitucci whether she had a union representative or not.
54.     At about 4:00 p.m., Lischak returned to the February 9 meeting . . . and he agreed to pay Christopher back pay and attorney's fees in the amount of $5,000.60. Lischak then signed the settlement agreement; however, Christopher refused to do so until Attorney Petit had reviewed it. Patitucci informed both Lischak and Christopher that she was required to show the agreement to Burgess. Burgess' name was on the OCI scheduling letter as a party to the mediation conference.
55.     The February 9 meeting . . . lasted from 9:30 a.m. until after 4:00 p.m.
56.     The February 9 meeting . . . was held without affording Local 1547 notice and/or the opportunity to be represented.
57.     On or about February 10, 2000, Respondent, through Burgess, held a meeting with Christopher in Burgess' office in Building 1150 at the Respondent to discuss Christopher's EEO complaint . . . and to sign the written agreement prepared by Patitucci regarding that complaint.
58.     The [February 10] meeting . . . began at about10:00 a.m.
59.     During the [February 10] meeting . . . Burgess and Christopher discussed the OCI mediation conference that occurred on February 9 . . . and the resolution.
60.     During the [February 10] meeting . . . Christopher signed the agreement, that was reached in the [February 9] meeting.
62.     The [February 10] meeting . . . lasted about 15 minutes.
63.     The February 10 meeting . . . was held without affording Local 1547 notice and/or opportunity to be represented.
70.     OCI follows the Justice Center of Atlanta's model during the mediation process. Confidentiality is a critical part of that process. . . . The Justice Center of Atlanta's mediation model encourages that only those persons involved in the dispute be present. Persons cannot just sit in on the mediation process.
72.     This Stipulation of Facts, including all Exhibits attached hereto, constitutes the entire record in this case and all parties agree that no oral testimony is necessary or desired by the parties. There is no other agreement of any kind which varies, alters, or adds to this Stipulation of Facts. All parties to this Stipulation of Facts agree that no material issue of fact exist and hereby waive the right to present any evidence other than that contained in this Stipulation and its Exhibits. No party, by entering this Stipulation, waives its right to raise objections on brief to the relevance, materiality or necessity of any stipulated fact.

Discussion and Conclusions

      The General Counsel contends that the Respondent violated section 7116(a)(l) and (8) of the Statute by conducting three formal discussions (on November 9, 1999 and February 9 and 10, 2000) with a bargaining unit employee concerning the mediation of a formal EEO complaint without providing the Union with notice and an opportunity to be represented as required by section 7114(a)(2)(A) of the Statute.

      The Respondent admits that it held the three meetings without providing the Union with notice and an opportunity to be represented. It denies that it committed an unfair labor practice, however, for the following reasons. First, the Respondent argues that a union's right under the Statute to participate in formal discussions does not apply to EEO proceedings, because they are not "grievances." Second, the Respondent asserts that the meetings in this case were not "formal discussions" within the meaning of the Statute. Finally, the Respondent contends that the presence of a union representative at EEO mediation sessions would conflict with [ v58 p542 ] EEOC regulations, the Alternative Dispute Resolution Act (ADR Act), and other statutes concerning confidentiality.

      For the most part, the issues and the parties' arguments in this case are identical to those which were raised in two recent cases: U.S. Department of the Air Force, 436th Airlift Wing, Dover Air Force Base, Dover, Delaware, 57 FLRA 304 (2001)(Dover); and Luke Air Force Base, Arizona, 54 FLRA 716 (1998)(Luke), rev'd sub nom. Luke Air Force Base v. FLRA, 208 F.3d 221 (9th Cir. 1999)(Table), cert. denied, 121 S.Ct. 60 (2000). The history of those two cases illustrates the opposing views of the Authority and the Ninth Circuit Court of Appeals concerning the applicability of section 7114(a)(2)(A) to meetings related to an employee's EEO complaint. In Luke, the Authority held that such EEO meetings were "formal discussion[s] . . . concerning [a] grievance" and that neither EEOC regulations nor other statutes excluded such meetings from the requirements of section 7114(a)(2)(A). The Ninth Circuit, however, reversed the Authority in that case, rejecting the right of a union to be notified and given the opportunity to participate in the mediation of an employee's formal EEO complaint. In Dover, the Authority reviewed the rationale of its Luke decision, in light of its rejection by the Circuit Court, and the Authority refused (albeit less than unanimously) to budge. The Authority reiterated its Luke holding that a mediation session of an EEO complaint is a "grievance" within the meaning of section 7114(a)(2)(A), even when the collective bargaining agreement expressly excludes EEO complaints from the negotiated grievance procedure; moreover, the union has a right to attend such mediations, even when they are conducted by a "neutral" party such as an OCI mediator, and even when the employee didn't designate the union as his representative. Notwithstanding the Ninth Circuit's decision in Luke, the Authority insisted in Dover that the presence of a union at such meetings does not conflict with EEOC regulations, the Privacy Act or other expressions of an EEO claimant's right to confidentiality.

      In my decision, I am bound to follow applicable rulings of the Authority, even when the Authority has chosen not to accept the reasoning of a Circuit Court. As noted by ALJ Oliver in his decision in Dover, 57 FLRA at 316 n.5, the Authority is not bound by the case law of a single circuit. This results in a somewhat anomalous situation in this case, as the parties here are identical to those in the Luke case cited above, and my recommended order is similar to the Authority's order in its 1998 Luke decision, which the Ninth Circuit refused to enforce in 1999. Nevertheless, I am constrained to follow the principles expressed by the Authority, and for the reasons set forth below, I conclude that the Respondent violated section 7116(a)(1) and (8) of the Statute by failing to provide the Union with notice and an opportunity to be represented at the meetings on November 9, 1999 and February 9 and 10, 2000.

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 represented 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 condition of employment[.]
Section 7116(a)(1) and (8) of the Statute provides:
(a) For the purpose of this chapter, it shall be an 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.     Section 7114(a)(2)(A) of the Statute Applies in the Context of EEO Statutory Appeals

      The Respondent argues that, as a general matter, the statutory right of a union to attend formal meetings does not apply to "proceedings conducted under the auspices of the EEOC regulations[.]" Resp. Brief at 15. Although this argument was accepted by the Ninth Circuit in its decision, as well as by Chairman Cabaniss in her Dover dissent (57 FLRA at 312-14), the Authority expressly rejected it in both its Luke and Dover decisions. See, Dover, 57 FLRA at 310; Luke, 54 FLRA at 732-33. There are no new facts present in this case that would distinguish it from those two cases. Accordingly, I find that section 7114(a)(2)(A) is applicable to the EEO meetings between the Respondent and Ms. Christopher; next, I will address whether the three meetings here satisfy section 7114(a)(2)(A)'s requirements.

C.     The Meetings Satisfy the Elements 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 [ v58 p543 ] 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. Luke, 54 FLRA at 723, citing General Services Administration, Region 9 and American Federation of Government Employees, Council 236, 48 FLRA 1348, 1354 (1994)(GSA).

1.     The Three Meetings Regarding the EEO Complaint Were Discussions

      The Respondent does not dispute that each of the three meetings with the complainant were discussions, and I so find. The Respondent contests all of the remaining elements.

2.     The Three Meetings Were Formal

In GSA, the Authority stated:
In determining whether a discussion is formal within the meaning of section 7114(a)(2)(A), we have 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.

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). Therefore, in determining formality, the Authority considers the totality of the facts and circumstances. Id.

a.     November 9, 1999 Meeting

      Based on totality of the circumstances, I find that the November 9 meeting to discuss settlement of Ms. Christopher's EEO complaint was formal. In reaching this conclusion, I rely on the following undisputed facts. First, the meeting was held by a management representative (Captain Burgess, JAG attorney for Respondent) and a management official (Ms. Elrod, the base's Civilian Personnel Officer). Second, the meeting was held in the Respondent's Legal Office, outside the complainant's work site. See, Luke, 54 FLRA at 726 ("Meetings held outside an employee's immediate work area are associated with formality, while those held in the work area are not."). Third, the meeting was not impromptu but was scheduled in advance. Fourth, the meeting was not brief, lasting from thirty minutes to an hour. Finally, the meeting had a planned agenda -- to discuss Ms. Christopher's EEO complaint.

      The Respondent argues that the meeting was not formal because attendance was voluntary. The voluntary nature of the meeting, however, does not undermine its formality. See, Dover, 57 FLRA at 307; Luke, 54 FLRA at 728.

b.     February 9, 2000 Meeting

      Based on the totality of the circumstances, I also find that the February 9 meeting to mediate a settlement of Ms. Christopher's EEO complaint was formal. In reaching this conclusion, I rely on the following undisputed facts. First, the meeting was held by a high-level management representative, Colonel Lischak, the Medical Group Commander. Second, the meeting was held in the Respondent's EEO conference room, outside the complainant's work site. Third, the meeting was scheduled in advance. Fourth, the meeting was not brief, lasting, with breaks, from 9:30 a.m. until after 4:00 p.m. Finally, the meeting had a planned agenda -- to discuss and mediate Ms. Christopher's EEO complaint. As explained above, I reject the Respondent's argument that the meeting was not formal because attendance was voluntary.

c.     February 10, 2000 Meeting

      Based on the totality of the circumstances, I find that the February 10 meeting to discuss Ms. Christopher's EEO complaint and the settlement agreement was formal. In reaching this conclusion, I rely on the following undisputed facts. First, the meeting was held by a management representative (Captain Burgess, the JAG attorney). Second, the meeting took place in the Respondent's Legal Office, outside the complainant's work site. Third, the meeting was scheduled in advance. Fourth, the meeting, although shorter than the other two meetings, was neither casual nor merely a passing conversation, lasting fifteen minutes. See, Office of Program Operations, Field Operations, Social Security Administration, San Francisco Region, 15 FLRA 70, 73 (1984)(finding a meeting that only lasted about 15 minutes to be formal). Finally, the meeting had a planned agenda -- to discuss Ms. Christopher's EEO complaint and to sign the settlement agreement. Again, I reject the Respondent's argument that the meeting was not formal because attendance was voluntary. Despite the relative brevity of the meeting, it was a continuation of the February 9 meeting, in that Ms. Christopher had not yet accepted the settlement agreement, and the February 10 meeting was scheduled in the hope of finalizing it. In the totality of the circumstances, it was formal. [ v58 p544 ]

3.     The Meetings Were Between a Representative of the Agency and a Bargaining Unit Employee

      The November 9 meeting was attended by Ms. Christopher (a bargaining unit employee), Captain Burgess (JAG attorney), and Ms. Elrod (Chief Personnel Officer). The Respondent has stipulated that Captain Burgess was management's representative in the EEO case, that Ms. Elrod was a management official, and that during the meetings they were acting on behalf of the Respondent. Accordingly, I find that the November 9 meeting was between a "representative of the agency" and a unit employee within the meaning of section 7114(a)(2)(A) of the Statute.

      The February 9 meeting was attended by Colonel Lischak (Commander), Ms. Patitucci (mediator), and Ms. Christopher. The Respondent acknowledges that Colonel Lischak was a management official, was acting on behalf of the Respondent during the meeting, and had settlement authority. See, Luke, 54 FLRA at 730 (the respondent's representative who had settlement authority was found to be a "representative of the agency" within the meaning of section 7114(a)(2)(A)). Thus, I find that the February 9 meeting was also between a "representative of the agency" and a unit employee within the meaning of section 7114(a)(2)(A) of the Statute.

      In light of this finding, and as in Luke and Dover, it is unnecessary to address the Respondent's argument that the mediator, Ms. Patitucci, was not a representative of the agency.     

      The February 10 meeting was attended by Captain Burgess and Ms. Christopher. Having determined above that Captain Burgess was a "representative of the agency," I find that the February 10 meeting was also between a "representative of the agency" and a unit employee within the meaning of section 7114(a)(2)(A) of the Statute.

4.     The Three Meetings to Discuss the EEO Complaint Concerned a Grievance

      With regard to the fourth requirement of section 7114(a)(2)(A), the Respondent makes three arguments. First, the Respondent argues that EEO complaints raised under the statutory EEO appeal procedure are not "grievances" under the Statute. Second, the Respondent contends that EEO complaints are not grievances under the Statute where the parties have excluded EEO complaints from the coverage of their negotiated grievance procedure. Third, the Respondent asserts that EEO complaints raised under the statutory EEO appeal procedure do not concern "other general conditions of employment" within the meaning of section 7114(a)(2)(A) of the Statute.

      The Respondent's first two contentions were resolved by the Authority in Luke and reaffirmed (over the Chairman's dissent) in Dover. The Authority held that a formal EEO complaint filed by an employee constituted a "grievance" within the meaning of section 7114(a)(2)(A) and rejected the assertion that section 7114(a)(2)(A) cannot recognize as a "grievance" any matter that the parties have excluded from their own grievance procedure. See Dover, 57 FLRA at 308-10; Luke, 54 FLRA at 730-32. In light of this precedent, I find that the three meetings regarding the EEO complaint concerned a "grievance" within the meaning of section 7114(a)(2)(A). In light of my finding that the meetings concerned a "grievance," I need not address the Respondent's argument that the meetings did not concern "other general conditions of employment."

D.     The Presence of a Union Representative at a Mediation or Settlement Discussion of an EEO Complaint Would Not Conflict with EEOC Regulations or the Confidentiality Provisions of the ADR Act and Other Statutes

      Finally, the Respondent contends that allowing a union representative to attend the mediation or settlement discussion of an EEO complaint would conflict with EEOC regulations and the confidentiality provisions of the ADR Act and other statutes. In making this argument, the Respondent raises certain hypothetical problems that are not at issue in this case. For example, the Respondent argues that in some other ADR session, "there may be a direct conflict" between the interests of the union representative and those of the employee complainant. Resp. Brief at 23. No facts illustrating such a direct conflict have been elicited in this case.

      The Authority has previously rejected similar arguments regarding a conflict. Dover, 57 FLRA at 310; Luke, 54 FLRA at 732-33. First, the Authority has held that the presence of a union representative at a mediation session of an EEO complaint would not conflict with EEO regulations or the ADR Act. Second, the Authority has refused to address hypothetical problems such as those raised by the Respondent here that might arise in another ADR session involving EEO complaints. Dover, 57 FLRA at 310.

      In light of these findings, I conclude that by holding formal discussions with a bargaining unit employee without affording the Union notice and an opportunity to be represented, as required by section 7114(a)(2)(A), the Respondent violated section 7116(a)(1) and (8) of the Statute, as alleged.

      Based on the above findings and conclusions, I recommend that the Authority adopt the following Order: [ v58 p545 ]

ORDER

      Pursuant to section 2423.41(c) of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, it is hereby ordered that the Department of the Air Force, 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, AFL-CIO, with advance notice and an 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 bargaining unit employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.

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

     (a) Provide the American Federation of Government Employees, Local 1547, AFL-CIO, with advance notice and an opportunity to be represented at formal discussions with bargaining unit employees concerning mediation of formal EEO complaints.
     (b) Post at its Luke Air Force Base facilities, where bargaining unit employees represented by the American Federation of Government Employees, Local 1547, AFL-CIO, are located, copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the Commander, Luke Air Force Base, and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to ensure that such Notices are not altered, defaced, or covered by any other material.
     (c) Pursuant to section 2423.41(e) of the Authority's Rules and Regulations, notify the Regional Director, Denver Regional Office, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply herewith.

Issued, Washington, DC, October 23, 2001.

      .______________________
RICHARD a. PEARSON
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 provide the employees' exclusive representative, the American Federation of Government Employees, Local 1547, AFL-CIO (the Union), with advance notice and an 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 our employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.

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

      ______________________
(Respondent/Activity)

Dated:________By:_________________________

      (Signature) (Title)

This Notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material.

If employees have any questions concerning this Notice or compliance with any of its provisions, they may communicate directly with the Regional Director, Denver Regional Office, Federal Labor Relations Authority, whose address is: 1244 Speer Boulevard, Suite 100, Denver, CO 80204 and whose telephone number is: (303)844-5224.

     



Footnote # 1 for 58 FLRA No. 131 - Authority's Decision

   The concurring opinion of Member Armendariz and the dissenting opinion of Chairman Cabaniss are set forth at the end of this decision.


Footnote # 2 for 58 FLRA No. 131 - Authority's Decision

   Section 7114(a)(2)(A) states that an exclusive representative of an appropriate unit in an agency shall be given the opportunity to be represented at 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 condition of employment.


Footnote # 3 for 58 FLRA No. 131 - Authority's Decision

   The EEOC's regulations are set forth at 29 C.F.R. Part 1614.


Footnote # 4 for 58 FLRA No. 131 - Authority's Decision

   DoD consolidated the function of investigating formal EEO complaints, which was formerly performed in its components, in the OCI, which is part of DoD's Civilian Personnel Management Service. In January 1999, OCI established an ADR team, which consists of mediators (employees of DoD) who conduct OCI mediation conferences for pending EEO complaints when agreed upon by the parties. When the parties and their representatives have agreed to have an OCI mediation conference, the matter is assigned to a mediator on the ADR team, who then contacts the parties to schedule the mediation conference. The military activity involved in the scheduled conference provides appropriate facilities and administrative support.


Footnote # 5 for 58 FLRA No. 131 - Authority's Decision

   Prior to the mediation conference, the mediator also requested that the JAG attorney provide draft boilerplate language for a settlement agreement.


Footnote # 6 for 58 FLRA No. 131 - Authority's Decision

   The employee subsequently designated the Union as her personal representative concerning the Respondent's compliance with the terms of the settlement agreement. Exhibit 2 (employee's affidavit) at 16.


Footnote # 7 for 58 FLRA No. 131 - Authority's Decision

   The Respondent stipulated that the JAG attorney was management's representative with respect to this EEO complaint. Stipulation ¶ 25. The Respondent also stipulated that the Personnel Officer and the Commander were supervisors and/or management officials under § 7103(a)(10) and (11) of the Statute. Id. The Respondent further stipulated that "[d]uring the time period covered by this complaint" all three individuals (the JAG Attorney, Personnel Officer and Commander) "were acting on behalf of Respondent[.]" Stipulation ¶ 27.


Footnote # 8 for 58 FLRA No. 131 - Authority's Decision

   Luke Air Force Base, Ariz., 54 FLRA 716 (1998) (Luke), rev'd sub nom. Luke Air Force Base v. FLRA, 208 F.3d 221 (9th Cir. 1999) (Table), cert. denied, 531 U.S. 819 (2000), and United States Dep't of the Air Force, 436th Airlift Wing, Dover Air Force Base, Dover, Del., 57 FLRA 304 (2001) (Chairman Cabaniss dissenting) (Dover), enf'd sub nom. Dep't of the Air Force, 436th Airlift Wing, Dover Air Force Base v. FLRA, 316 F.3d 280 (D.C. Cir. 2003) (Dover AFB v. FLRA).


Footnote # 9 for 58 FLRA No. 131 - Authority's Decision

   42 U.S.C. § 290dd-2 et. seq. (2002).


Footnote # 10 for 58 FLRA No. 131 - Authority's Decision

   Executive Order 13145, 65 Fed. Reg. 6877 (Feb. 8, 2000) prohibits discrimination in Federal employment based on genetic information.


Footnote # 11 for 58 FLRA No. 131 - Authority's Decision

      According to the employee's affidavit, the mediator contacted the employee on January 11, 2000 to schedule the mediation session in February. Employee's affidavit at 6-7.


Footnote # 12 for 58 FLRA No. 131 - Authority's Decision

   Since we find that the mediation and settlement discussions concerning the employee's formal EEO complaint concerned a "grievance" for purposes of § 7114(a)(2)(A), we do not address the Respondent's claims that the mediation and settlement discussions did not involve general conditions of employment affecting the bargaining unit.


Footnote # 13 for 58 FLRA No. 131 - Authority's Decision

   As relevant here, the court stated in note 12 that "a direct conflict between the rights of an exclusive representative under § 7114(a)(2)(A) and the rights of an employee victim of discrimination should also presumably be resolved in favor of the latter." NTEU v. FLRA, 774 F.2d at 1189 n.12 (emphasis in original).


Footnote # 14 for 58 FLRA No. 131 - Authority's Decision

      The record reveals that while the mediator was meeting separately with the Commander on February 9, the employee unexpectedly met the Union Vice President in the atrium of the building in which the mediation conference took place. See Exhibit 2 (employee's affidavit) at 9-10. The employee willingly discussed her complaint and the proposed terms of the settlement agreement with the Union Vice President. Id. The employee's demonstrated willingness to discuss her complaint with, and to seek advice from, the Union regarding proposed terms of the settlement agreement strongly indicates that the employee would not have objected to the Union's presence at the mediation and settlement discussions on confidentiality grounds. Moreover, the employee actively sought the Union's assistance in ensuring compliance with the terms of the settlement agreement. Id. at 16. Thus, these facts show the lack of a "direct" conflict even more so than in Dover, where the D.C. Circuit stated:

It is important to note one other reason why there is no direct conflict in this case. As the Air Force conceded, there is no evidence that Jones (the employee) objected to union presence at the mediation proceeding. We do not foreclose the possibility that an employee's objection to union presence could create a `direct' conflict that should be resolved in favor of the employee as described in footnote 12 of NTEU. 774 F.2d at 1189 n.12. As there is no conflict present in the case before us, the FLRA's construction is permissible.

Dover AFB v. FLRA, 316 F.3d at 287.


Footnote # 15 for 58 FLRA No. 131 - Authority's Decision

   The Authority also noted that 5 U.S.C. § 552a(b) provides, with certain exceptions, as follows:

No agency shall disclose any record which is contained in a system of records by any means of communication to