United States, Department of Agriculture, Forest Service , Los Padres National Forest, Goleta, California (Respondent) and National Federation of Federal Employees, Local 2023, AFL-CIO (Charging Party)

[ v60 p644 ]

60 FLRA No. 128

UNITED STATES
DEPARTMENT OF AGRICULTURE
FOREST SERVICE
LOS PADRES NATIONAL FOREST
GOLETA, CALIFORNIA
(Respondent)

and

NATIONAL FEDERATION
OF FEDERAL EMPLOYEES
LOCAL 2023, AFL-CIO
(Charging Party)

SF-CA-02-0133
SF-CA-02-0400
SF-CA-02-0525

_____

DECISION AND ORDER

March 1, 2005

_____

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 General Counsel filed an opposition to the exceptions.

      The complaints allege that the Respondent violated § 7116(a)(1) and (8) of the Federal Service Labor-Management Relations Statute (the Statute) by holding three formal discussions with bargaining unit employees regarding Equal Employment Opportunity (EEO) complaints without affording the Union notice and an opportunity to be represented as required by § 7114(a)(2)(A) of the Statute. 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 to the extent consistent with this decision.

II.      Background

      Case No. SF-CA-02-0133 involves the EEO complaints of Patrick Crespin. As relevant here, one of the complaints was mailed to the Department of Agriculture (DOA) on September 13, 2001, and was received by the DOA on September 20, 2001. On September 26, 2001, a mediation/settlement meeting was held to resolve Crespin's EEO complaints. The Union was not provided advance notice or an opportunity to attend the mediation session.

      Case No. SF-CA-02-0400 involves the EEO complaints of Cyndie Genzmer. On October 4, 2001, Genzmer mailed a formal complaint to the DOA. On January 6, 2002, she mailed another formal complaint concerning a different matter to the DOA. On March 8, 2002, a mediation/settlement meeting was held to resolve the Genzmer's EEO complaints. The Union was not provided advance notice or an opportunity to attend the mediation session.

      Case No. SF-CA-02-0525 involves the EEO complaints of Jannet Benton, one of which was filed in accordance with the terms of a court-approved settlement agreement and order in a class action suit against DOA. A mediation/settlement meeting was held on April 8, 2002, to resolve Benton's EEO complaints. The Union was not provided advance notice or an opportunity to attend the mediation session.

      The General Counsel issued complaints alleging that the three mediation sessions were formal discussions and that since the Respondent had not given notice to the Union, the Respondent violated § 7116(a)(1) and (8) of the Statute.

III.       Judge's Decision

      Applying the criteria established by Authority precedent, the Judge concluded that all three of the mediation sessions constituted "formal discussions" within the meaning of § 7114(a)(2)(A) of the Statute.

      The Judge found that it was undisputed that the mediation sessions at issue constituted discussions. Judge's Decision at 16. He also found that the mediation sessions were "formal" since the circumstances surrounding the mediation sessions in this case were sufficiently similar to the facts in United States Dep't of the Air Force, Luke Air Force Base, Ariz., 58 FLRA 528 (2003) (Luke II) (Member Armendariz concurring and Chairman Cabaniss dissenting); United States Dep't of the Air Force, 436th Airlift Wing, Dover Air Force Base, Dover, Delaware, 57 FLRA 304 (2001) (Dover) (Chairman Cabaniss dissenting), affirmed sub nom Dover Air [ v60 p645 ] Force Base v. FLRA, 316 F.3d 280 (D.C. Cir. 2003) (Dover AFB v. FLRA); and Luke Air Force Base, Ariz., 54 FLRA 716 (1998) (Luke I), rev'd 208 F.3d 221 (9th Cir. 1999), cert. denied, 121 S. Ct. 60 (2000). Specifically, based on the totality of the circumstances, the Judge found that Crespin and Genzmer's mediation sessions were formal in light of the following facts: management was represented by Forest Service officials with full authority to settle the EEO complaints; the sessions were held at locations outside of the employees' work area and lasted for several hours; the sessions were scheduled two weeks or more in advance; and the pre-established subject of the meetings was to discuss and resolve the EEO complaints.

      Consistent with the Authority precedent cited above, the Judge rejected the Respondent's claims that Crespin's mediation session was not formal since it was conducted by a mediator and was voluntary. Id. at 18 (citing Luke II, 58 FLRA at 533; Dover, 57 FLRA at 307). The Judge also rejected the Respondent's claim that the fact that the manager participating in the mediation was not in Crespin's chain of command nullified the formality of the meeting. Id. (citing Dover, 57 FLRA at 307). With respect to Genzmer's mediation session, the Judge noted that although attendance was voluntary and notes from the meeting were destroyed, such factors did not outweigh the other factors indicating formality. Id. at 21 n.17.

      The Judge also rejected the Respondent's argument that the mediation sessions involving Crespin and Genzmer were not formal within the meaning of § 7114(a)(2)(A) because the employees' formal EEO complaints had not been accepted by the DOA prior to the occurrence of the mediation sessions. Id. As relevant here, the Judge found that under the EEOC's regulations, an aggrieved person must engage in a pre-complaint process that consists of consulting with an EEO counselor as a prerequisite to filing a complaint of discrimination. Id. at 19 (citing 29 C.F.R. § 1614.105). Subsequently, at the completion of counseling, the counselor must provide the aggrieved with a written notice of the aggrieved's right to file a discrimination complaint. Id. (citing 29 C.F.R. § 1614.105(d)). Upon receipt of that notice, the aggrieved has the right to pursue the claim further "through the formal complaint procedure." Id. (citing EEO MD-110, Chapter 2, § VI.D.1). The aggrieved must file a complaint with the agency that allegedly discriminated against him or her within 15 days of receipt of the written notice of right to file. Id. (citing 29 C.F.R. § 1614.106). If the complaint is mailed, then the date of filing is the postmark date, not the date the agency received the complaint. Id. at 19-20 n.15 (citing EEO MD-110, Ch. 5, § 1). Within a reasonable time after a complaint is filed, the agency must notify the complainant whether and to what extent it is accepting or dismissing the complaint. Id. at 20.

      Based on the EEO complaint process described above, the Judge concluded that "the acceptance of an EEO complaint follows the filing of a formal complaint and status as a formal EEO complaint is not dependent on the agency's acceptance." Id. at 20. Also, the Judge found that Crespin's formal complaint was filed as of September 13, 2001, the date that it was mailed to the DOA, which was prior to the mediation session on September 26, 2001. Similarly, with respect to Genzmer, the Judge found that her formal complaints were mailed to the DOA on October 4, 2001 and January 6, 2002, and therefore filed on these dates prior to the March 8, 2002 mediation session.

      With respect to the mediation session involving Benton, the Judge found that this meeting was also sufficiently similar to the circumstances in Luke II, Dover, and Luke I, and constituted a formal discussion in light of the following factors: management was represented by the Lake Tahoe Basin Management Unit Supervisor with full authority to settle Genzmer's EEO complaints; the session was held at a location outside of the employee's work area and lasted for 8 hours; the session was scheduled almost two weeks in advance; and the pre-established subject of the meeting was to discuss and resolve the EEO complaints.

      The Judge rejected the Respondent's argument that Benton's mediation session was not a formal discussion since Benton's EEO complaint at issue was filed pursuant to the terms of a settlement agreement in a class action suit, Donnelly v. Glickman. The Judge noted that Section 21 of the settlement agreement "authorized class members to file EEO complaints that would otherwise be time barred." Id. at 22 n.18. The Judge, noting the Respondent's "bare assertion" in this regard, found "no basis for finding that the origin of one of the complaints discussed at the meeting offsets the indicia that indicate the meeting was formal in nature." Id.

      The Judge found that it was undisputed that the three mediation sessions were between a representative of the agency and a unit employee.

      Relying on Authority precedent, the Judge further found that the three mediation sessions involving EEO complaints concerned a "grievance" within the meaning of § 7114(a)(2)(A) of the Statute. The Judge noted that the Authority has found that the broad definition of grievance under § 7103(a)(9) includes any employment-related [ v60 p646 ] complaint, regardless of the forum in which the complaint is pursued. The Judge also noted the Authority's holding that the statutory definition of a grievance is not dependent on the scope of a negotiated grievance procedure, and that this principle applies whether EEO claims are excluded from coverage or included within the coverage of a negotiated grievance procedure. Id. at 23 (citing Marine Corps Logistics Base, Barstow, Cal., 52 FLRA 1039, 1047 (1997)). The Judge noted that in light of his findings that Crespin and Genzmer's EEO disputes had developed into formal complaints at the time of the mediation sessions, it was "not necessary to determine whether an EEO dispute that is at the pre-complaint or counseling stage constitutes a grievance within the meaning of section 7114(a)(2)(A)." Id.

      Further, relying on Authority precedent, the Judge rejected the Respondent's claims that the facts surrounding these three mediation sessions presented a direct conflict between the Union's institutional rights under § 7114(a)(2)(A) and the employees' rights to confidentiality in EEO proceedings. Id. at 24. The Judge found that the Authority had considered and rejected similar arguments in Luke II and Dover as hypothetical in nature. Relying on Luke II, the Judge also rejected the Respondent's claim that the Union's presence at these mediation sessions violated the Privacy Act, as well as other laws and regulations pertaining to the protection of an individual's confidentiality. The Judge found that the Respondent had not presented any evidence that the mediation sessions involved any information or records at issue under the laws and regulations identified by the Respondent. Id. at 25.

      Lastly, the Judge rejected the Respondent's argument that there is an inherent conflict in allowing the Union to be present at meetings in the context of the EEO complaint process. The Judge noted that instead of adopting an approach that such an intrinsic conflict exists, the Authority has recognized that "`an appropriate resolution is required in the event of a direct conflict between individual and institutional rights.'" Id. (citing Luke II, 58 FLRA at 535 quoting Dover).

IV.     Respondent's Exceptions

A.      Crespin and Genzmer's Complaints

      The Respondent excepts to the Judge's findings that the meetings involving employees Crespin and Genzmer occurred as part of the formal EEO process. Rather, the Respondent maintains that these meetings involved complaints that were in the informal EEO process, and as such, were not formal discussions under § 7114(a)(2)(A) of the Statute. In support of its position, the Respondent cites Authority and judicial decisions in which the Authority and courts have found that meetings conducted during the informal EEO process were not "formal discussions" under § 7114(a)(2)(A). Exceptions at 7 (citing IRS Fresno Serv. Ctr. v. FLRA, 706 F.2d 1019 (9th Cir. 1983)). The Respondent contends that the Judge erred by relying on EEO MD-110 as "the definitive regulation," as opposed to the Agency's EEO regulations, to determine whether the complaints were in the formal or informal stage. Id. The Respondent contends that under its unique EEO process, Crespin's and Genzmer's complaints were in the informal process when their respective mediation sessions occurred since their complaints had not yet been accepted by the DOA's OCR.

      The Respondent maintains that at the time of the mediation session, none of Crespin's complaints were officially within the formal EEO complaint system. The Respondent notes that Crespin filed his first complaint in January 2000 and had failed to appeal the Agency's final decision on this complaint that was issued on April 11, 2001. Moreover, regarding Crespin's second complaint, the Respondent maintains that Crespin filed the pre-complaint on May 21, 2001, and requested alternative dispute resolution (ADR) on May 29, 2001. Subsequently, on September 10, 2001, mediation was scheduled for September 26, 2001. On September 13, 2001, Crespin filed his formal EEO complaint, which was received by the DOA on September 20, 2001.

      The Respondent maintains that since neither an acknowledgment nor an acceptance letter had been issued for the second complaint, it had no knowledge that Crespin had filed a formal complaint. Nonetheless, the Respondent points out that although management would not have been aware of the status of these complaints at the time of the mediation, it was prepared to consider any of Crespin's claims at the early intervention program (EIP) mediation session. Id. at 15-16. In this respect, the Respondent notes that the settlement agreement covers both complaints. The Respondent maintains that this fact demonstrates how separate the ADR EIP procedures are from the formal procedures.

      Similarly, with regard to employee Genzmer's claims, the Respondent also maintains that mediation of both of her formal complaints that were mailed on October 4, 2001 and January 6, 2002 was conducted under the informal process since at the time of the mediation session, the DOA had not yet accepted these complaints. The Respondent contends that the mediation session that occurred on March 8, 2002, concerning both of Genzmer's formal complaints, was during the informal [ v60 p647 ] process since the formal process started when the DOA subsequently issued an acceptance letter concerning both complaints on June 21, 2002.

      In addition, the Respondent argues that although Crespin and Genzmer could have designated a union official as their representative for their mediation session, they instead designated another employee (Ginelle O'Connor) who was one of the named plaintiffs in a class action suit against the DOA. Also, the Respondent maintains that the employees could have filed a grievance instead of an EEO complaint. The Respondent notes that the Union's role in "the EEO and EIP process is demonstrated by the fact that the [U]nion was advised of the settlement and negotiated with the management." Id. at 16. See Exhibit 23.

B.      Benton's Complaint

      The Respondent maintains that the Judge erred in finding that the mediation session involving employee Benton was a formal discussion under § 7114(a)(2)(A). The Respondent claims that since one of Benton's complaints was filed under a settlement agreement approved by a federal district court and not the negotiated grievance procedures or EEO complaint process, these circumstances are "unique and require a different result." Id. at 18. The Respondent also maintains that the mediation was not held as part of the EIP to resolve collective bargaining disputes or EEO complaints. Id. at 20.

C.      Authority's Formality Criteria

      The Respondent urges the Authority to reexamine the formality criteria. The Respondent contends that the Authority has "all but eviscerated any semblance of the former principles of the concept of [a] formal discussion." Id. at 22. The Respondent maintains that the Authority is not precluded from reconsidering this precedent by the court's decision in Dover AFB v. FLRA, as the court merely upheld the Authority's decision as "`reasonable' under [the] Chevron" standard. Exceptions at 23. In this respect, the Respondent maintains that the Authority should look at the totality of circumstances presented. Moreover, the Respondent argues that the Authority should focus on the "crucial fact" that a neutral mediator conducts the mediation session, not the management officials in attendance. Also, regarding the status of the management officials attending the mediation, the Respondent contends that "the important fact" is that such officials are not in the employee's chain of command. Id. at 24. The Respondent argues that the Authority has recognized that whether a meeting comes within the scope of § 7114(a)(2)(A) is based on "the subject matter of the meetings" and whether "these meetings include discussions about general rules or policies" rather than discussions with individuals about a personal workplace dispute. Id. at 23. The Respondent argues that the fact that the meeting took place away from the duty station and lasted a long time is not relevant to the statutory purpose of § 7114(a)(2)(A).

D.      The Mediation Sessions Concerned a "Grievance"

      The Respondent contends that the Judge erred in holding that the mediation sessions involved a "grievance" within the meaning of § 7114(a)(2)(A) of the Statute. In this respect, the Respondent argues that unlike the circumstances in Luke I, Dover, and Luke II, the fact that EEO claims are not excluded from the coverage of the parties' negotiated grievance procedure (NGP) and employees therefore have a choice in filing a grievance under the NGP or an EEO complaint warrants a different interpretation of "grievance" under § 7114(a)(2)(A). Exceptions at 26-28.

E.      Union's Presence at Mediation Sessions Is Prohibited by EEOC Regulations, ADRA, and Other Statutes and Regulations

      The Respondent contends that the Judge erred in failing to find that the Union's attendance at EEO mediation sessions is prohibited by EEOC regulations and other statutes. The Respondent maintains that contrary to the Judge's findings, these arguments were not previously considered by the Authority. The Respondent maintains that the Authority should defer to the EEOC's interpretations of its regulations and that "[t]he EEOC has never adopted a rule allowing for the union's presence at mediations." Id. at 33. In this respect, the Respondent notes that attendance at administrative hearings on EEO complaints is limited to persons with "direct knowledge relating to the complaint," and that such hearings are closed to the public. Id. at 36 (citing § 1614.109(c)).

      The Respondent maintains that the Authority's position fails to consider the "drastic changes in the mediation process," and the negative "impact" of including the Union, a "third party with broader interests and concerns would have on this system of reaching individualized settlement of complaints[.]" Id. at 37. In this respect, the Respondent contends that nothing in § 7114(a)(2)(A) of the Statute requires that the Union representative maintain the confidentiality of matters discussed at the mediation session. Also, the Respondent argues that given the Union's obligation to keep the unit informed of issues that affect the unit, the Union's presence at EEO mediation sessions would have a [ v60 p648 ] "chilling effect across the entire EEO process[,]" and "even inhibit employees from filing EEO complaints." Id. at 39, 38.

      The Respondent notes that EEO-MD-110 provides that agencies are prohibited from disclosing information relating to pre-complaints and formal complaints to unions under the Privacy Act unless the complainant elects union representation or provides written consent. Id. at 41 (citing Chapter 3, Section II(A)(6)). The Respondent argues that agencies must abide by such provisions in the EEO-MD-110 since EEOC Regulations require that agency procedures comply with the "instructions for complaint processing contained in [EEOC's] Management directives." Id. at 40 (citing § 1614.104(a)). The Respondent maintains that this provision of EEO-MD-110 prohibiting disclosure of information to unions clearly contradicts the Authority's finding that no provision in EEOC's regulations precludes union attendance at mediation sessions of EEO complaints. In this respect, the Respondent maintains that the Authority and the D.C. Circuit have viewed these directives as mere guidance and have failed to consider the regulatory nature of such directives.

      The Respondent maintains that the Union's attendance at mediation sessions is prohibited by the Administrative Dispute Resolution Act (ADRA) and the Privacy Act. The Respondent also maintains that the Union's attendance at mediation sessions would violate the following statutes, not addressed by the Authority or courts: (1) the Public Health Services Act, 42 U.S.C. § 290dd-2 et seq. , which requires that agencies maintain records relating to employees' drug and alcohol abuse in strict confidentiality; (2) Executive Order 13145, which requires agencies to maintain the confidentiality of an employee's genetic information; (3) Office of Personnel Management's (OPM) list of routine uses; (4) the Rehabilitation Act; (5) the Americans with Disabilities Act; and (6) 38 U.S.C. § 7332, which protects the confidentiality of certain medical records of patients of the Veterans Health Administration.

F.      Inherent Conflict of Interest in Union's Representation at Mediation Sessions

      The Respondent contends that there are inherent as well as direct conflicts of interest with the Union's involvement in the case processing of individual EEO complaints. The Respondent maintains that there have been a number of class action discrimination suits filed by women and Hispanic employees against the DOA and that the Union has filed objections to proposed settlement agreements in these cases. The Respondent notes that all three of the employees in this case selected a named plaintiff in one of these suits as their personal representative. The Respondent contends that hostile work environment claims frequently involve the actions of numerous co-workers, who are members of the bargaining unit, and that the Union is usually asked to represent the alleged wrongdoer who may be subject to discipline. In addition, the Respondent claims that there are "practical problems" in allowing the Union to attend a mediation session. Id. at 54.

G.      New Policy for Dealing with Union Involvement in EEO Disputes

      The Respondent contends that the Union's interests should be addressed solely in the resolution phase of the EEO complaint process, whereby the Union would be given an opportunity to review any proposed agreement and negotiate on either its substance and/or impact and implementation, as appropriate. Id. at 21-22 (citing March AFB, 57 FLRA 392 (2001)).

V.     General Counsel's Opposition

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

VI.     Analysis and Conclusions

      As explained below, we find that the mediation sessions involving employees Crespin and Genzmer, which occurred after they filed formal EEO complaints and sought to resolve such complaints, were formal discussions within the meaning of § 7114(a)(2)(A) of the Statute. Similarly, we find that the mediation session involving employee Benton's formal EEO complaint was a formal discussion within the meaning of § 7114(a)(2)(A) of the Statute. In addition, we find that the Respondent has failed to demonstrate that the presence of a Union representative at these mediation sessions would conflict with EEOC regulations, ADRA, Privacy Act and the host of other laws and regulations cited by the Respondent. Therefore, we find that the Respondent violated § 7116(a)(1) and (8) by failing to provide the Union notice and an opportunity to be represented at these mediation sessions.

A.      Crespin and Genzmer's Complaints

      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 [ v60 p649 ] or any personnel policy or practice or other general condition of employment. Dover, 57 FLRA at 306; Luke I, 54 FLRA at 723; Gen. Servs. Admin., Region 9, 48 FLRA 1348, 1354 (1994) (GSA).

      The Respondent contends that Crespin and Genzmer's mediation sessions were not formal discussions under § 7114(a)(2)(A) because their filed complaints were not part of the formal EEO complaint process as of the time of the mediation sessions since the DOA had not yet issued letters accepting the complaints under its EEO regulations. For the following reasons, we reject the Respondent's contention.

      We find, in agreement with the Judge, that the employees' complaints were part of the formal EEO process as of the time of the mediation sessions. Under EEOC regulations and directives, the formal EEO complaint process begins with the filing of a formal complaint after the issuance of the notice of right to file a discrimination complaint, not with the agency's subsequent acceptance of the filed complaint. See § 1614.105 (informal pre-complaint processing) and § 1614.106 (filing of complaints after receipt of notice of right to file a discrimination complaint). Thus, the fact that letters of acknowledgment and/or acceptance of the filed complaints were not issued by the DOA until after the mediation sessions is not a relevant factor in determining whether the filed complaints were part of the formal EEO process. In this respect, we reject the Respondent's claims that the Judge erred in relying on EEO MD-110 in determining the effective filing date for formal complaints as prior to the issuance of acceptance and/or acknowledgment letters by DOA. We find that Judge's reliance on EEO-MD-110 was in line with EEOC's Regulations that require agency procedures to be consistent with instructions for complaint processing in EEOC's management directives, such as EEO MD-110. See § 1614.104 (a).

      Also, we reject the Respondent's claims that it had no knowledge that formal complaints had been filed by the employees as of the time of the mediation sessions since copies of the acknowledgment or acceptance letters had not yet been issued by DOA's OCR. In this respect, we note that the Respondent was represented by management officials in the Forest Service who were notified of the mediation sessions in advance. As such, these officials had the opportunity to confirm whether formal complaints had been filed by the employees and to ensure that the Union received notice and an opportunity to attend the mediation sessions. Thus, the Respondent has not demonstrated that the Judge erred in finding that the mediation sessions involved formal EEO complaints.

      Moreover, as stated in Dover, 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.

      We will apply these factors to the three mediation sessions at issue in this case.

      Examining the totality of the circumstances, we agree with the Judge that the discussions involving Crespin and Genzmer are like the discussions that occurred in Luke II, Dover, and Luke I. With regard to both employees, the meetings were scheduled more than two weeks in advance; the established purpose of the meetings was to mediate and resolve their EEO complaints; the attendees were provided information concerning the mediation in advance of the meetings; the meetings were held in locations away from their work sites; and attendees at the meetings included management representatives/officials with full authority to settle the EEO complaints. Also, we note that the parties did not dispute the Judge's finding that the meetings followed a traditional mediation format consisting of joint and/or separate discussions between the parties facilitated by a mediator. Accordingly, we find that the Respondent has not demonstrated that the Judge erred in finding that Crespin and Genzmer's mediation sessions were formal discussions under § 7114(a)(2)(A).

B.      Benton's Complaints

      We reject the Respondent's exception that the Judge erred in finding that the mediation session involving employee Benton was a formal discussion under § 7114(a)(2)(A) since one of her complaints was filed pursuant to a court-approved settlement agreement and not the negotiated grievance procedure or EEO procedures. [n2] 

      Our review of the record reveals the following. On June 19, 2001, Benton filed a complaint with the designated non-Agency Complaint Administrator under the settlement agreement. By letter dated October 22, 2001, [ v60 p650 ] the DOA acknowledged and accepted for investigation Benton's complaint. See Exhibits 30, 31. Benton subsequently requested mediation. Exceptions at 19. The Respondent coordinated the date and time of the mediation session and made the location arrangements. By letter dated March 26, 2002, the EIP Manager confirmed that the mediation session to resolve Benton's complaints was scheduled for April 8, 2002. The confirmation was sent to the following attendees: Benton, her personal representatives, and management representatives (the Lake Tahoe Basin Management Unit Forest Supervisor with full authority to resolve the complaints and a Technical representative), and the mediator. The mediation session was held as scheduled at a hotel and lasted approximately 8 hours. See Exhibit 32. The parties signed an "Agreement to Mediate," which provided that participation in the process was voluntary and specified measures to safeguard the confidentiality of the process. Exhibit 33.

      Based on the foregoing, we agree with the Judge that the mediation session constituted a formal discussion under § 7114(a)(2)(A). Applying the formality criteria set forth above, we note that the mediation was scheduled two weeks in advance; attendees at the mediation included the Lake Tahoe Basin Management Unit Supervisor who had full authority to settle the EEO complaint on behalf of the Respondent and a technical representative; the meeting had an agenda to discuss and resolve the EEO complaints; the mediation occurred in a hotel, away from the employee's work site; and the mediation lasted approximately 8 hours.

      Furthermore, we reject the Respondent's claim that Benton's mediation session was not a formal discussion under § 7114(a)(2)(A) because the complaint was filed in accordance with the terms of the court-approved settlement agreement in the Donnelly v. Glickman class action suit. [n3] Based on our review of the process prescribed by the terms of the settlement agreement, we find no meaningful basis for distinguishing Benton's formal EEO complaint in this case from Luke I, Dover, and Luke II. Under the terms of the settlement agreement, the Complaint Administrator refers all eligible complaints to the Respondent and DOA for "normal" informal and formal processing in accordance with EEOC Regulations, 29 C.F.R. Part 1614, and 42 U.S.C. § 2000e-16, like any other EEO complaint that is filed directly with the DOA. See Settlement Agreement, Exhibit 11, § 21.6 - § 21.7 at 29.

      Moreover, we reject the Respondent's assertion that Benton's mediation was not held as part of its EIP to resolve EEO complaints. The Respondent has not demonstrated, and the record does not show how availability of ADR through the EIP under the settlement agreement is substantially different from the mediation of other EEO complaints under the EIP that are not filed pursuant to the settlement agreement. See id., § 11.6 at 23-24 (settlement agreement does not specify any changes to the EIP process). We note that the Respondent's provision of ADR under the EIP for complaints filed pursuant to the settlement agreement is consistent with EEOC's Regulations that require agencies to provide ADR at all stages of the pre-complaint and formal EEO process. See § 1614.102(b)(2). Thus, we agree with the Judge that Benton's mediation session was a formal discussion under § 7114(a)(2)(A) that the Union had a right to attend.

C.      Formality Criteria under § 7114(a)(2)(A)

      We reject the Respondent's contention that the Authority should reverse or overturn its precedent governing formality and that the Authority has eviscerated the principles or concept of a formal discussion. We find that the Authority's application of § 7114(a)(2)(A) in Luke I, Dover, and Luke II to EEO mediation sessions is fully consistent with the section's statutory purpose.

      In considering the application and scope of § 7114(a)(2)(A), the Authority has stated that

[I]n examining each of the[] elements [of § 7114(a)(2)(A)], we will be guided by that section's intent and purpose --to provide the union with an opportunity to safeguard its interests and the interests of employees in the bargaining unit--viewed in the context of a union's full range of responsibilities under the Statute.

Exhibit 5.

United States Dep't of Justice, Bureau of Prisons, Federal Correctional Institution, (Ray Brook, N.Y.), 29 FLRA 584, 588-89 (1987). In Dover, in considering the statutory purpose of § 7114(a)(2)(A), the Authority found that "unions have an established interest in how allegations of discrimination are dealt with and resolved, regardless of the forum in which the employee chooses to lodge the complaint." Dover, 57 FLRA at 309 (citing NTEU v. FLRA, 774 F.2d at 1188). The Authority found that the union in Dover had "an undeniable [ v60 p651 ] representational interest in, among other things, disciplinary action taken against [the complainant] even though [the complainant] did not challenge the matter through the NGP." Id. (citing AFGE, Local 1345 v. FLRA, 793 F.2d 1360 (D.C. Cir. 1986) (recognizing union's § 7114 interest in discipline imposed on bargaining unit employees, even though the employees did not file a grievance or seek union representation concerning the discipline)).

      In addition, the Authority has held that "the processing of an individual complaint through EEO procedures can have an effect on the entire bargaining unit, which the union represents." Id. Further, in Dover, the Authority noted the Tenth Circuit's explanation that "by providing formal discussion rights for discrete grievances and not just general personnel policies, the Statute recognizes that the resolution of an individual employee complaint may have an impact on the rights of other unit employees." Id. (citing Dep't of Veterans Affairs, Denver, Colorado v. FLRA, 3 F.3d 1386, 1390 (10th Cir. 1993)). Here, the Respondent does not dispute that the settlement of an EEO complaint could have an impact on the rest of the unit.

      With respect to its request that the Authority reconsider the application of the formality criteria under § 7114(a)(2)(A), the Respondent raises substantively identical arguments to those that have been previously raised and rejected by the Authority. Accordingly, we find that the Respondent has not presented a basis for reconsideration of or departure of the Authority's precedent in this regard.

D.      The Mediation Sessions Concerned a "Grievance"

      We reject the Respondent's exception to the Judge's conclusion that these mediation sessions involving EEO complaints concerned a grievance within the meaning of § 7114(a)(2)(A) of the Statute. The Authority has already addressed and resolved this issue. As noted recently in Luke II, the Authority has "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)." Luke II, 58 FLRA at 533 (citing Dover, 57 FLRA at 308-09).

      Further, we reject the Respondent's exception that this case warrants a finding that the Union is not entitled to its representational rights under § 7114(a)(2)(A) since EEO claims are not excluded from coverage of the parties' negotiated grievance procedure. In Luke II, the Authority reaffirmed its holdings in Dover, that were affirmed by the D.C. Circuit Court of Appeals 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." Id. (footnote omitted). In this respect, the Authority has reaffirmed its previous holdings in Luke I and Dover, that the statutory definition of a grievance is not dependent on the scope of a negotiated grievance procedure. Luke II, 58 FLRA FLRA at 534. The Respondent presents no new arguments that merit reconsideration of or departure from this precedent.

E.      EEOC Regulations, ADRA, Privacy Act and Other Statutes

      Except for the arguments pertaining to EEO-MD-110 and 38 U.S.C. § 7332, which we address below, the Authority has considered and rejected arguments substantively identical to the remaining arguments made by the Respondent in this case; namely, that the Union's presence at mediation sessions conflicts with EEOC Regulations, ADRA, the Privacy Act and other statutes and regulations that protect the confidentiality of certain information and records. See Luke II, 58 FLRA at 531 (respondent's exceptions that union's attendance would violate provisions of EEOC regulations, ADRA, Privacy Act, OPM's list of routine use exceptions; Public Health Services Act, Executive Order 13145; Rehabilitation Act and Americans with Disabilities Act). As in Luke II, we find that

[T]he 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. . . .
In addition, we reject the Respondent's claims [that] the Union's presence at the mediation session conflicts with the confidentiality provisions [ v60 p652 ] 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 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).

Luke II, 58 FLRA at 535, 536.

      In the same vein, we reject the Respondent's contention that Section II(A)(6) of EEO-MD-110 specifically prohibits the Union's attendance at EEO mediation and settlement discussions. Section II(A)(6) provides in pertinent part that

Agencies must also be mindful of the prohibitions on the disclosure of information about individuals imposed by the Privacy Act. All pre- and post-complaint information is contained in a system of records subject to the Act. Such information, including the fact that a particular person has sought counseling or filed a complaint, cannot be disclosed to a union unless the complaining party elects union representation or gives his/her written consent.

Contrary to the Respondent's assertion, this provision of EEO-MD-110 does not specifically address or prohibit the Union's attendance at EEO mediation and settlement discussions. Rather, the provision represents the EEOC's interpretation of the Privacy Act that an agency's disclosure of certain information to a union would violate the Privacy Act. As relevant here, although not in the context of EEO-MD-110, in Luke II, the Authority has previously addressed and rejected claims that a union's presence at mediation and settlement discussions would necessarily result in the disclosure of information in violation of the Privacy Act.

      In rejecting these claims, the Authority noted "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." Luke II, 58 FLRA at 535 (citing Dover AFB v. FLRA, 316 F.3d at 286). Moreover, as the Authority noted in Luke II, "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." [n4] Id. 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 the Act, "`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)).

      Consistent with the actual retrieval standard applied by the courts above and by the Authority in Luke II, and noting the absence of any reliance by the Respondent on court decisions dealing with the Privacy Act, we find that the Respondent in this case has not demonstrated that the Union's acquisition of knowledge of the nature of the complaint as a result of the agency providing notice of, and the Union's attendance at, mediation and settlement discussions would require a retrieval of information in violation of the Privacy Act. Id. at 535-36. Accordingly, for the reasons explained above, we find no basis for finding a violation of the Privacy Act in this case, and in turn, no basis for finding a violation of EEO-MD-110.

      Finally, the Respondent does not assert or point to any evidence in the record that the employees in this case are patients of the Veterans Health Administration (VHA). As such, the Respondent has not demonstrated how the Union's presence at the mediation and settlement discussions in this case could have [ v60 p653 ] violated 38 U.S.C. § 7332, which protects the confidentiality of certain medical records of VHA patients.

      Thus, for the reasons set forth in Luke II and Dover, we reject the Respondent's exception that this case warrants a finding that the Union is not entitled to its representational rights under § 7114(a)(2)(A) of the Statute.

F.      Inherent and Direct Conflicts of Interest

      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. Luke II, 58 FLRA at 535; Dover, 57 FLRA at 309 (citing NTEU v. FLRA, 774 F.2d at 1189 n.12). [n5] 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 reject the Respondent's exception in this case that the fact that the Union objected to the proposed settlement agreements in EEO class action law suits that were filed against DOA poses an inherent and direct conflict of interest that precludes the Union's participation in EEO mediation sessions. As relevant here, the record reveals that in the Donnelly v. Glickman law suit, the Union objected to the settlement agreement because it did not require bargaining with the Union. In this respect, the court found that none of the terms of the settlement agreement that affect the Union's rights can be implemented unless proper notice and an opportunity to bargain are provided to the Union and that the bargaining provisions of the parties' Master Labor Agreement are followed. Exhibit 13, Order approving Settlement Agreement in Donnelly v. Glickman at 10. The court also noted that "the parties [in the lawsuit] ha[d] agreed that none of the procedures of the settlement which affect conditions of employment will be implemented without engaging in bargaining with the Union." Id. The court noted that as a result of the Union's objections regarding the insufficient level of privacy and confidentiality for unit members, the parties in the lawsuit had agreed on revisions to the agreement that addressed the Union's concerns. Id. at 12. Essentially, the Union's objections sought to protect its bargaining rights over changes in conditions of employment and to protect the confidentiality of its members. As such, we find nothing in these circumstances that creates any conflict, much less a direct conflict, between the Union's institutional rights and the employees' individual rights that would have necessitated disallowing the Union's presence at the mediation sessions in this case.

      Further, we reject the Respondent's claim that the Union's representation of alleged wrongdoers in hostile work environment claims, which frequently involve the actions of numerous unit members who may be subject to discipline, constitutes a basis for precluding the Union from attending EEO mediation sessions in this case. The Respondent makes no specific claim, and there is no indication in the stipulated record, that there any such conflict existed in this case. Hence, we reject the Respondent's hypothetical claims. Luke II, 58 FLRA at 536 ("hypothetical issues are more appropriately addressed in an actual case when squarely presented").

      In addition, we reject the Respondent's contention that had the employees in this case desired the Union's presence at the mediation sessions they would have chosen a union representative as their personal representative. The Respondent's reliance on this fact is misplaced. The employees' choice of personal representative under the EEOC regulations does not have any bearing on the separate right of the Union to attend such mediation hearings under § 7114(a)(2)(A) of the Statute. Moreover, the fact that the employees did not choose a union representative as their personal representative does not suggest or prove that the employees would have objected to the Union's presence at their mediation sessions. [n6] 

G.      New Policy for Dealing with Union Involvement in EEO Disputes

      We reject the Respondent's contention that the Union should only be granted the right to bargain over the impact and implementation, and substance if appropriate, of settlement agreements of EEO complaints reached in mediation sessions. The Statute grants the Union the right to be present at formal discussions, [ v60 p654 ] including mediation sessions of EEO complaints as the Authority and D.C. Circuit have found, under § 7114(a)(2)(A). As we have stated above, the Authority has found that this is not an absolute right and that considerations of direct conflicts will be taken into account. The Authority cannot nullify the Union's statutory right under § 7114(a)(2)(A) in favor of, or in subordination to, its right to bargain over the impact and implementation regarding changes that an effect on the bargaining unit.

      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 complaints in violation of § 7116(a)(1) and (8) of the Statute.               

VII.      Order

      Pursuant to section 2423.41 of our Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, United States Department of Agriculture, Forest Service, Los Padres National Forest, Goleta, California shall:

      1.      Cease and desist from:

           (a)      Failing or refusing to provide the National Federation of Federal Employees, Local 2023, 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 them by the Statute.

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

           (a)      Provide the National Federation of Federal Employees, Local 2023, 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 all facilities of the United States Department of Agriculture, Forest Service, Los Padres National Forest, 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 Los Padres National Forest Supervisor 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 San Francisco 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. [ v60 p655 ]


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 Agriculture, Forest Service, Los Padres National Forest, Goleta, California, 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, National Federation of Federal Employees, Local 2023, 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, San Francisco Regional Office, Federal Labor Relations Authority, whose address is: 901 Market Street, Suite 220, San Francisco, CA 94103-1791 and whose phone number is: (415) 356- 5000.


Dissenting opinion of Chairman Cabaniss:

      Consistent with my views set out in prior cases involving these same issues, 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 in this case. See, e.g., United States Dep't of the Air Force, Luke AFB, Ariz., 58 FLRA 528, 538 (2003).


File 1: Authority's Decision in 60 FLRA No. 128 and Opinion of Chairman Cabaniss
File 2: ALJ Decision


Footnote # 1 for 60 FLRA No. 128 - Authority's Decision

   The dissenting opinion of Chairman Cabaniss is set forth at the end of this decision.


Footnote # 2 for 60 FLRA No. 128 - Authority's Decision

   The Respondent does not raise any objections to Benton's other complaints that were mentioned in the DOA's acceptance letter.


Footnote # 3 for 60 FLRA No. 128 - Authority's Decision

   The court-approved settlement agreement authorized certain employees in Region 5 of the Forest Service in California, who had been subjected to a hostile work environment between February 1, 1994 and February 6, 2001, to initiate an individual EEO complaint by filing a "Settlement Agreement Complaint Form" with an independent Complaint Administrator. See Settlement Agreement, Exhibit 11, § 21.1 at 27.


Footnote # 4 for 60 FLRA No. 128 - Authority's Decision

   The Privacy Act, 5 U.S.C. § 552a, restricts the disclosure, and redisclosure, of personally identifiable records. As relevant, § 552a(b) provides, with certain exceptions, that:

No agency shall disclose any record which is contained in a system of records by any means of communication to any person, or to another agency, except pursuant to a written request by, or with the prior written consent of, the individual to whom the record pertains[.]

Footnote # 5 for 60 FLRA No. 128 - Authority's Decision

   As relevant h