Pension Benefit Guaranty Corporation, Washington, D.C. (Respondent/Agency) and National Association of Government Employees, SEIU, AFL-CIO, Local R3-77 (Charging Party/Union)
[ v62 p219 ]
62 FLRA No. 48
OF GOVERNMENT EMPLOYEES
SEIU, AFL-CIO, LOCAL R3-77
DECISION AND ORDER
November 9, 2007
Before the Authority: Dale Cabaniss, Chairman, and
Wayne C. Beyer and Carol Waller Pope, Members [n*]
I. Statement of the Case
This unfair labor practice (ULP) case is before the Authority on exceptions to a decision of the Administrative Law Judge (Judge) filed by the Respondent. The General Counsel (GC) and the Charging Party (the Union) filed an opposition.
The complaint alleges that the Respondent violated § 7116(a)(1) and (8) of the Federal Service Labor-Management Relations Statute (the Statute) when a contractor serving as the Respondent's equal employment opportunity (EEO) investigator held formal discussions with 11 unit employees concerning a formal EEO complaint filed by another employee, without providing the Charging Party notice or an opportunity to be represented at those discussions, as required by § 7114(a)(2)(A) of the Statute.
The Judge found, based on a stipulated record, that the Respondent violated the Statute as alleged in the complaint. 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 and Judge's Decision
The Respondent and the Union follow the pertinent terms and conditions of an expired collective bargaining agreement (CBA). Article 5 of that agreement "concerns Equal Employment Opportunity (EEO)." Judge's Decision at 2. It provides, among other things, for the "Union's involvement in the formulation of an Affirmative Employment Program Plan and requires that corrective actions `taken as a result of formal resolution of EEO complaints . . . be consistent with the provisions of [the CBA], unless compelling reasons exist for waiving them.'" Id. Article 55 of the CBA sets forth "a grievance procedure that permits employees to raise allegations of . . . discrimination either under the negotiated grievance procedure or under the regulations [of] the Equal Employment Opportunity Commission (EEOC) . . . , but not both." Id. at 3.
Under the Respondent's EEO program, employees who work for the Respondent's EEO Office must be "neutral." Id. Pursuant to EEOC procedures, agencies may conduct investigations of formal EEO complaints with their own EEO staff or may "contract out the investigations, but in either case the agencies are "responsible for the content and timeliness of the investigations." Id. The Respondent contract[s] out the investigation of formal discrimination complaints." Id.
In the events giving rise to this case, a unit employee filed a formal complaint of discrimination with the Respondent's EEO Office, alleging that she had been discriminated against on several bases and that she had been sexually harassed. The Respondent appointed an independent contractor to investigate the complaint. In its Memorandum (Memo) appointing the contractor, the Respondent stated that: (1) employees "should provide complete cooperation in the investigation"; (2) employees are "required to furnish testimony under oath, without a pledge of confidence, about matters pertaining to the complaint"; and that (3) the contractor was "authorized to use [the Respondent's] supplies, copying machines, telephone, and assigned office space." Respondent's Exhibit 5. The contractor was required to provide weekly reports to the Respondent's EEO Manager and to submit the complete investigative file to the Respondent.
The contractor interviewed and obtained affidavits from, as relevant here, 11 unit employees. Judge's Decision at 4. Before each interview, the contractor sent each employee a list of questions. Id. He conducted four interviews by phone, and the other seven interviews in person in the Respondent's offices. Id. The employee was the only person present with the contractor [ v62 p220 ] at each interview. Id. The interviews, "whether by [phone] or in person, were scheduled in advance and ranged from 15 to 45 minutes in duration." Id. The contractor tape-recorded each interview with permission from each employee, and forwarded the transcribed statements to the respective employees for their review. The contractor "did not notify the Union or the Respondent of the . . . dates and times of the interviews . . . ." Id. at 5.
The Judge found that the contractor's interviews with the unit employees were formal discussions within the meaning of § 7114(a)(2)(A) of the Statute, and that the Union was accordingly entitled to advance notice of the interviews and the opportunity to be represented. Citing long-standing precedent, the Judge stated that a union is entitled to representation under § 7114(a)(2)(A) only if there is (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. Id. at 9-10 (citing Dep't of the Air Force, Sacramento Air Logistics Ctr., McClellan Air Force Base, Calif., 29 FLRA 594, 597-98 (1987)).
With respect to whether the interviews were discussions within the meaning of § 7114(a)(2)(A), the Judge found that "the facts and law leave little doubt that they were." Id. at 10. Further, applying the factors in General Services Administration, Region 9, 48 FLRA 1348, 1355 (1994), the Judge found that the interviews were "formal." In addition, the Judge found that the interviews concerned a grievance. In this regard, the Judge noted that "[t]his precise issue has been thoroughly litigated in recent years . . . and the Authority has made its position clear . . . that formal EEO complaints processed under 29 C.F.R. Part 1614 or other statutory appeal procedures constitute `grievances' within the meaning of the Statute." Id. at 12.
Further, the Judge noted that, while the parties were finalizing the stipulation of facts in this case, the Authority issued SSA, Office of Hearings and Appeals, Boston Regional Office, Boston, Mass., 59 FLRA 875 (2004) (Chairman Cabaniss dissenting) (SSA Boston), reconsideration granted 60 FLRA 105 (2004) (Authority granted reconsideration for the purpose of modifying the identity of the respondent, the identity of the official designated to sign the notice, and the scope of the posting). The Judge stated that SSA Boston "appears to resolve the principal legal issue posed in the case at bar[;]" namely, whether the contractor was a representative of the Respondent. Id. at 10. The Judge stated that "[t]he short answer to this question, based on SSA Boston, is yes: The contractor's status and actions are factually and legally indistinguishable from those of the EEO investigators in the SSA Boston case, and so the holding of that case is binding and applicable here." Id. at 12.
The Judge subsequently concluded:
As I noted at the start of this section, the facts of this case are indistinguishable from those of SSA Boston, in which the Authority held that the EEO investigator was a representative of the agency, and that the agency had therefore committed an unfair labor practice by failing to notify the union and to allow it to participate in the interviews. Although I . . . might reach a different conclusion, in the absence of SSA Boston, I am bound to apply the rulings of the Authority. Based on SSA Boston, I must therefore conclude that the contractor was a representative of the Agency.
Based on the above, the Judge recommended that the Authority find that the Respondent committed the unfair labor practices alleged in the complaint and recommended a similar remedy to that imposed in SSA Boston, 59 FLRA at 881.
III. Respondent's Exceptions
Although the Respondent also contends that the Judge erred in finding that this case involved a "discussion" and a "grievance" within the meaning of § 7114(a)(2)(A), its primary argument is that the contractor was not a "representative of the agency" when he interviewed the unit employees. The Respondent argues that an EEO investigator cannot serve as a representative of an agency because the investigator's role, whether carried out by an agency employee or an independent contractor, is to serve as a neutral. According to the Respondent, the contractor had no authority to seek to resolve the complaint or to inquire into any changes in the terms or conditions of employment.
The Respondent contends that the Authority "must clarify the scope and impact of [SSA Boston] to bring it into conformity with the holding in NASA and avoid the unnecessary and unwise conflicts with EEOC laws and regulations." Exceptions at 4-5. In this regard, the Respondent asserts that the Authority misconstrued NASA in reaching its holding in SSA, and that NASA, when read in context, supports exempting EEO interviews from the scope of § 7114(a)(2)(A).
[ v62 p221 ] The Respondent asserts that the Authority should find that in the context of the unit employee's EEO complaint, the investigator was not acting as a representative of the Respondent, but rather as a neutral. According to the Respondent, as long as the investigator is acting as a neutral, no notice to the union should be necessary, and the union would not have an interest in attending such an interview. In sum, the Respondent contends:
When the subject and content of the interview are, in fact, just an interview into the employee's knowledge of facts concerning a formal complaint of discrimination by another employee, and no actual "discussion" is occurring; when the area of inquiry has been limited to a formal complaint of historical discrimination not done by, but at most witnessed by, the subject employee and is not otherwise a "grievance;" and, when the questioner is a contract employee with no authority to represent or discuss terms or conditions of employment on behalf of management and no advocate for management is present, then there is really no "representative of management," and 5 U.S.C. § 7114(a)(2)(B) [sic] is not implicated.
Id. at 11.
IV. General Counsel's Opposition
The GC contends that the Judge correctly concluded that the Authority's decision in SSA Boston is controlling in this case. According to the GC, the Respondent has misconstrued the Authority's citation to NASA in SSA Boston. The GC also asserts that the Respondent errs in claiming that SSA Boston conflicts with EEOC laws and regulations. According to the GC, the Respondent does not cite any provision of the EEOC's regulations that precluded the Union's attendance at the interviews.
Moreover, citing Defense Logistics Agency, Defense Depot Tracy, Tracy, CA, 39 FLRA 999 (1991) (Defense Depot Tracy), the GC contends that the Respondent's argument that the contractor should not be deemed a "representative of the agency" because he was retained as a neutral investigator is misplaced. According to the GC, the Authority's discussion in Defense Depot Tracy demonstrates that the neutrality of the contractor "is beside the point." GC's Opposition at 5.
Finally, the GC contends that the Union had a legitimate interest in attending the interviews. In this regard, the GC asserts that the Union's presence "would have enabled it to ascertain, first-hand and as the investigation occurred, whether the process was conducted in a fair and impartial manner." Id. at 6. Further, according to the GC, "by attending the interviews, the Union would have learned in a timely manner whether there were incidents of sexual harassment or evidence of a hostile work environment." Id.
V. Charging Party's Opposition
The Charging Party asserts that the interviews in this case constituted formal discussions that concerned a grievance within the meaning of § 7114(a)(2)(A), and that SSA Boston, which the Respondent "acknowledges . . . is directly on-point," is consistent with Authority precedent. Charging Party's Opposition at 5. Further, the Charging Party contends that the investigator was clearly a representative of the agency, consistent with the holding under the "identical fact-pattern" in SSA Boston. Id. at 7. Finally, the Charging Party asserts that in SSA Boston the Authority properly relied on the Supreme Court's decision in NASA and that the Judge's decision should be affirmed.
VI. Analysis and Conclusions
In order for a union to have the right to representation under § 7114(a)(2)(A) of the Statute, 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. SSA Boston, 59 FLRA at 878 (citations omitted).
A. The Interviews Constituted Formal Discussions
The Respondent excepts to the Judge's finding that the interviews were discussions within the meaning of § 7114(a)(2)(A). The Respondent asserts that the interviews concerned only the employees' knowledge of facts concerning a formal complaint of discrimination and that no actual discussion occurred. Contrary to the Respondent's contention, we find that the Judge was correct when he concluded that "the facts and law leave little doubt that they were" discussions. Judge's Decision at 10. As the Judge correctly found, the interviews contained detailed exchanges of information between the witnesses and the contractor, and there need not be any debate between the participants in order to qualify as a "discussion" under § 7114(a)(2)(A). See United States Dep't of Justice, Bureau of Prisons, Federal Correctional Inst., Bastrop, Tex., 51 FLRA 1339, 1343 (1996) ("[t]he term 'discussion' in the Statute is synonymous with 'meeting' and no actual discussion or dialogue need occur for the meeting to constitute a discussion within the meaning of the Statute", (citing [ v62 p222 ] Dep't of Defense, Nat'l Guard Bureau, Tex. Adjutant General's Dep't, 149th TAC Fighter Group (ANG) (TAC), Kelly Air Force Base, 15 FLRA 529, 532-33 (1984)).
The Respondent does not specifically except to the Judge's finding that the discussions were "formal." In any event, the Judge's finding in this regard is supported by substantial evidence in the record. 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. SSA Boston, 59 FLRA at 878 (citation omitted). The Judge properly applied these factors and concluded, based on the stipulated record, that the discussions were formal.
Accordingly, we find that the Judge did not err in finding that the discussions constituted formal discussions within the meaning of § 7114(a)(2)(A) of the Statute.
B. The Contractor who served as the Respondent's EEO Investigator Was a Representative of the Agency
The Respondent excepts to the Judge's conclusion that the contractor who served as the Respondent's EEO investigator was acting as a "representative of the agency" within the meaning of § 7114(a)(2)(A) of the Statute. The Respondent also asserts that the Authority erred in SSA Boston in relying on NASA and Defense Depot Tracy.
As the Judge found and the parties acknowledge, the facts of this case are indistinguishable from those of SSA Boston, in which the Authority held that a contractor serving as an EEO investigator for the agency was a representative of the agency within the meaning of § 7114(a)(2)(A). In SSA Boston, the Authority stated as follows:
We agree with the Judge and the General Counsel that the EEO investigators were representatives of the Respondent within the meaning of § 7114(a)(2)(A) of the Statute. In Defense Depot Tracy, the Authority found that a contractor performing the role of an Employee Assistance Program Counselor was "functioning as the `representative of the agency,' within the meaning of § 7114(a)(2)(A) of the Statute when [the contractor] conducted the orientation meetings with the Respondent's employees[,]" as part of its Employee Assistance Program (EAP). 39 FLRA at 1013.
Also, the Supreme Court in NASA v. FLRA, 527 U.S. 229 (1999), in holding that an inspector general can constitute a representative of an agency under § 7114(a)(2)(B), noted that "[a]s an organization, an agency must rely on a variety of representatives to carry out its functions and, though acting in different capacities, each may be acting for, and on behalf of, the agency." Id. at 236. As relevant here, the court found that § 7114(a)(2)(B) was "not limited to agency investigators representing an `entity' that collectively bargains with the employee's union." Id. at 237. The Court also affirmed as consistent with the Statute the Authority's rationale that a contrary finding -- that § 7114(a)(2)(B) did not encompass investigations by an inspector general -- "might erode the right by encouraging the use of investigative conduits outside the employee's bargaining unit, and would otherwise frustrate Congress' apparent policy of protecting certain federal employees when they are examined and justifiably fear disciplinary action." Id. at 234.
In terms of the application of these principles to the contract investigators in this case, we find that the investigators were agency representatives in conducting these investigations at the bequest and on behalf of the Respondent in investigating the EEO complaints. We note that the "Letter of Authorization for Investigative Services" addressed to all SSA employees was signed by the Respondent's OCREO Director and directed employees to "provide . . . complete cooperation since the investigator has been given authority to conduct such investigation, inquiry or review into matters raised in an EEO complaint." Joint Exhibit 6b. The letter further states that "information/documentation collected by the investigator will be done in accordance with contract requirements[,]" and that the "purpose of th[is] investigation is to gather facts upon which to base a determination as to whether the Agency has violated an EEO statute, and if a violation is found, to have sufficient factual information from which to fashion an appropriate remedy." Id.
[ v62 p223 ] On this basis, we find that contrary to the assertions of the Respondent, its relationship with these investigators is not "tenuous" as control and direction of these investigators emanate from the contract between the [contractor's employer] and the Respondent. The Respondent had an official obligation to investigate these EEO complaints, and the fact that a contractor, rather than an agency employee, was designated by the agency to conduct these investigations does not diminish the relationship with the Respondent. As in NASA v. FLRA, we have the same concerns here that finding that these contract investigators are not agency representatives would encourage agencies to contract out of as much as of the EEO complaint process to avoid granting unions their statutory right to representation at formal discussions.
Thus, we find that consistent with Defense Depot Tracy and NASA v. FLRA, the contract investigators were agency representatives within the meaning of § 7114(a)(2)(A).
SSA Boston, 59 FLRA at 879-80.
As in SSA Boston, the Memo from the Respondent appointing the contractor directed employees to "provide complete cooperation in the investigation" and required them "to furnish testimony under oath, without a pledge of confidence, about matters pertaining to the complaint." Respondent's Exhibit 5. Further, the Memo authorized the contractor to use the Respondent's facilities and directed him to provide weekly reports to the Respondent's EEO Manager and to submit the complete investigative file to the Respondent. Respondent's Exhibit 3. Thus, as in SSA Boston, the Respondent's relationship with the contractor was with control and direction of the contractor emanating from the contract between the Respondent and the contractor. In these circumstances, the Authority's conclusion in SSA Boston applies equally as well here: "The Respondent had an official obligation to investigate these EEO complaints, and the fact that a contractor, rather than an agency employee, was designated by the agency to conduct these investigations does not diminish the relationship with the Respondent." SSA Boston, 59 FLRA at 880.
With respect to NASA, the Authority correctly set forth the Supreme Court's findings and rationale in support of its holding that an inspector general can constitute a representative of the agency as that term is set forth in § 7114(a)(2)(B). The same term--representative of the agency--is used in § 7114(a)(2)(A). The Authority has "recognized that, under general rules of statutory construction, there is a presumption that the same words used twice in the same statute have the same meaning." United States Dep't of Transportation, FAA Anchorage, Alaska, 61 FLRA 176, (2005) (citations omitted). Here, particularly where the same term is used in subsections of the same statutory section and there is no legislative history indicating otherwise, it is proper to give the same terms the same meaning. As such, it was appropriate for the Authority to rely on the Court's statement that "[a]s an organization, an agency must rely on a variety of representatives to carry out its functions and, though acting in different capacities, each may be acting for, and on behalf of, the agency" (NASA, 527 U.S. at 236), and the Court's finding that § 7114(a)(2)(B) was "not limited to agency investigators representing an `entity' that collectively bargains with the employee's union," Id. at 237.
Moreover, the Authority properly relied on the Court's affirmance of the Authority's rationale concerning the erosion of § 7114(a)(2)(B) rights. In particular, the Court's affirmance, as consistent with the Statute, the Authority's rationale that a contrary finding that § 7114(a)(2)(B) did not encompass investigations by an inspector general, "might erode the right by encouraging the use of investigative conduits outside the employee's bargaining unit, and would otherwise frustrate Congress' apparent policy of protecting certain federal employees when they are examined and justifiably fear disciplinary action" (Id. at 234). As to this last point, a finding that § 7114(a)(2)(A) did not encompass EEO investigations by contractors could similarly erode the policy established in that statutory provision granting exclusive representatives the opportunity to be represented at formal discussions.
Finally, with respect to Defense Depot Tracy, nothing in the Authority's decision, which agreed with the reasoning of the judge in that case, indicates that the contractor's neutrality, or the lack thereof, was relevant to the Authority's finding that a contractor was a "representative of the agency" within the meaning of § 7114(a)(2)(A) of the Statute. Id., 39 FLRA at 1013. Rather, as argued by the GC in its opposition, the Authority's finding in Defense Depot Tracy was based on an application of the same factors that the Authority applied in SSA Boston: whether the contractor was performing a function that otherwise would have been performed [ v62 p224 ] by the agency, and whether the respondent exercised any control over the contractor. Similarly, in the instant case, the contractor was performing a function that otherwise would have been performed by the Respondent in accordance with applicable regulations. Further, Defense Depot Tracy and the instant case are similar in that, in both cases, the contractors were assisted by the respective agencies and the employees were required to attend the meetings with the contractors. The fact that the contractor in SSA Boston, like the contractor here, was required to remain neutral did not preclude or otherwise affect the Authority's finding that he served as a representative of the agency.
Section 7114(a)(2)(A) requires that a union be given an opportunity to be present at certain discussions involving "one or more representatives of the agency." Contrary to the Judge's comments, relied on by the Respondent, nothing in the Statute distinguishes between such a representative serving a "prosecutorial role," a "personnel function," or a "neutral function." Judge's Decision at 20; Exceptions at 10. Moreover, the Judge's acknowledgement that unions have a right to attend discussions involving "personnel functions" undercuts the Respondent's claim that the neutrality of a representative insulates an agency from this statutory requirement, as personnel functions may, in many instances, be characterized as neutral. Id.
Further, the Respondent's reliance on EEOC guidance indicating that EEO investigators may not serve as "representatives" of agencies is misplaced. EEO Guidance MD-110, Ch. 1. par. vi. The EEOC guidance requires that each agency set up independent lines of authority for its EEO and personnel programs to assure the independence of the EEO process and to avoid "intrusion on the investigations and deliberations of EEO complaints by agency representatives and offices responsible for defending the agency against EEO complaints." Id. at par. III. The guidance thus uses the term "representative" in a particular context, that of agency advocate, and does not imply that employees serving under the EEO function are not, in a general sense, representing an agency's interests. As the regulations that govern EEO investigations make clear, these investigations are "conducted by the Agency," in accordance with EEOC directives. 29 C.F.R. § 1614.108(a).
Finally, nothing in the Statute or the Authority's case law indicates that the application of § 7114(a)(2)(A) turns on the factors found significant by the dissent. In this regard, § 7114(a)(2)(A) provides a union the right to be present at "any formal discussion" concerning a grievance. Further, as the dissent notes, the Authority has described this section as providing "the union" with the opportunity to safeguard both "its interests and the interests of employees in the bargaining unit . . . ." United States Dept. of Justice, Immigration and Naturalizations Serv., 55 FLRA 1032, 1037 (1999) (DOJ). While, as DOJ suggests, the interests of the employee and union may be particularly strong where the union is providing representation to an employee who believes he or she has been wronged, there is nothing in DOJ or the Statute that limits the union's right to that circumstance. Certainly, where the discussion at issue meets the various requirements of the Statute, there is no basis for denying the union access based on such circumstances as the "fact-finding" nature of the meeting, the fact that the employee is a "witness," or the fact that the union representative has not been "designated" by the employee. Dissent at 2. Rather, as our case law holds, those circumstances which indicate that the requirements of § 7114(a)(2)(A) are, or are not, met, should be taken into account. See, e.g., United States Dep't of the Air Force, 436th Airlift Wing, Dover Air Force Base, Dover, Delaware, 57 FLRA 304, 307 (2001); aff'd Dover Air Force Base v. FLRA, 316 F.3d 280 (D.C. Cir. 2003) (setting out factual circumstances indicating that discussion is "formal").
Accordingly, we conclude that the contractor who served as the Respondent's EEO Investigator was a representative of the Agency within the meaning of § 7114(a)(2)(A) of the Statute.
C. The Discussions Concerned a "Grievance"
We reject the Respondent's exception to the Judge's conclusion that these interviews involving EEO complaints concerned a grievance within the meaning of § 7114(a)(2)(A) of the Statute. As the Judge correctly found, "[t]his precise issue has been thoroughly litigated in recent years . . . and the Authority has made its position clear . . . that formal EEO complaints processed under 29 C.F.R. Part 1614 or other statutory appeal procedures constitute `grievances' within the meaning of the Statute." Judge's Decision at 12. In this regard, the Authority stated the following in SSA Boston:
The Authority has already addressed and resolved this issue. As noted recently in United States, Dep't of the Air Force, Luke Air Force [ v62 p225 ] Base, Arizona, 58 FLRA 528, 533 (2003) (Luke II) (Member Armendariz concurring and Chairman Cabaniss dissenting), 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, legislative history of the Statute, and the purpose of the Statute's provision for union representation under § 7114(a)(2)(A)." Id. (citing Dover, 57 FLRA at 308-09). As relevant here, 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 negotiated grievance procedure as well as complaints filed under alternative statutory procedures of the EEOC." Id. (footnote omitted).
Thus, for the reasons set forth in Luke II and Dover, we reject the Respondent's exception in this regard. The Respondent relies on the Ninth Circuit's decision in Luke AFB v. FLRA, which has been rejected by the Authority, and the Respondent presents no new arguments that merit reconsideration of or departure from the Authority's view.
SSA Boston, 59 FLRA at 880-81 (Chairman Cabaniss dissenting). The Respondent in this case has presented no new arguments that merit reconsideration of, or departure from, the Authority's view. Accordingly, we reject the Respondent's exception as to this matter.
In conclusion, based on the above, we find that the Respondent violated § 7116(a)(1) and (8) of the Statute as alleged in the complaint.
Pursuant to § 2423.41 of our Regulations and § 7118 of the Federal Service Labor-Management Relations Statute (the Statute), the Pension Benefit Guaranty Corporation, Washington, D.C., shall:
1. Cease and desist from:
(a) Conducting formal discussions with bargaining unit employees represented by the National Association of Government Employees, SEIU, AFL-CIO, Local R3-77 concerning any grievance or any personnel policy or practices or other general condition of employment, including investigatory interviews in connection with formal EEO complaints, without affording the Union an opportunity to be represented at the formal discussions.
(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 and policies of the Statute:
(a) Notify all persons, in writing, including independent contractors and subcontractors, authorized to investigate formal EEO complaints on behalf of the Respondent, of the right of the National Association of Government Employees, SEIU, AFL-CIO, Local R3-77 to notice and an opportunity to attend interviews held with bargaining unit employees as required by the Statute.
(b) Post at its facility at 1200 K Street, NW., Washington, D.C., 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 Respondent's EEO Director 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.