File 2: Opinion of Chairman Cabaniss
[ v62 p227 ]
Dissenting Opinion of Chairman Cabaniss:
I once again dissent from my colleagues in this case as I have in Dover AFB, Luke II, SSA Boston, FAA Renton, and Forest Service Goleta. I would dismiss this complaint because the witness interviews herein involve neither a formal discussion, nor constitute a grievance. The Majority also fails to recognize the facts that distinguish this case from our earlier decisions in NTEU v. FLRA, 774 F.2d 1181 (D.C. Cir. 1985) (NTEU); Luke Air Force Base, Arizona, 54 FLRA 716 (1998) (Luke I); United States Dep't of the Air Force, 436th Airlift Wing, Dover Air Force Base, Dover, Delaware, 57 FLRA 304 (2001) (Dover AFB); United States Dep't of the Air Force, Luke Air Force Base, Arizona, 58 FLRA 528 (2003) (Luke II); United States Dep't of Agriculture, Forest Service, Los Padres National Forest, Goleta, Calif., 60 FLRA 644 (2005) (Forest Service Goleta); and Federal Aviation Administration, Airways Facilities Division, Northwest Mountain Region, Renton, Washington, 60 FLRA 819 (2005) (FAA Renton).
I am concerned that the Authority's decisions from NTEU and Luke I, through those referenced above, have moved us far from the original intent and purpose of 7114(a)(2)(A) and have failed to appropriately weigh relevant factors that distinguish between discussions that are formal and those that are not; between meetings that constitute grievances and those that do not; and between participants that are representatives of management and those that are neutral. Therefore, I find it necessary to revisit my dissent in Dover AFB and discuss the significant distinctions that are present in the matter currently pending before us and should have been dispositive in SSA Boston.
The Authority has long recognized that section § 7114(a)(2)(A) has the dual purpose:
"To provide the union with an opportunity to safeguard its interests and the interests of employees in the bargaining unit . . . ." 29 FLRA at 589. Particularly in situations where the union is providing direct assistance to an employee who believes he or she has been wronged, section 7114(a)(2)(A) must not be construed as an impediment to the employee's ability to grieve a condition of employment.
United States Dep't of Justice Immigration and Naturalization Service, New York Office of Asylum Rosedale, New York, 55 FLRA 1032, 1037 (1999) (citing United States Dep't of Justice, Bureau of Prisons,, Federal Correctional Institution (Ray Brook, New York) 29 FLRA 584, 589 (1987) (FCI, Ray Brook)) (emphasis added).
From Luke I [n1] through the instant matter, the Majority has failed to appropriately consider the differing circumstances that affect the delicate balance that exists between the union's interests under § 7114(a)(2)(A) and the potential conflict with the interests of bargaining unit employees who opt not to have the union represent them and the potential conflict with the EEOC regulations and ADR Act. My dissent in Dover AFB recognized the necessity of weighing such "factors" in order to determine whether a meeting "falls within the parameters of a formal discussion" (Dover AFB, 57 FLRA at 312) and whether the matter constitutes a "grievance". Id. at 313. The Judge here attempted to establish an appropriate balance in his decision but was constrained by our holding in SSA Boston. Judge's Decision at 20.
Significant factors distinguish this matter and SSA Boston from the facts in NTEU, Luke I, Dover AFB, Luke II, FAA Renton, and Forest Service Goleta:
1. The nature of the meeting - Merit Systems Protection Board (MSPB) witness preparation (NTEU), OIG investigatory interview (NASA), EEO mediation (Luke I, Dover AFB, Luke II, Forest Service Galeta, FAA Renton), EEO fact-finding conference interview (SSA Boston).
2. Status of the bargaining unit employee - Employee who is subject of misconduct investigation (NASA), EEO complainant (Luke I and II, Dover AFB, Forest Service Galeta, FAA Renton), witness (NTEU, SSA Boston ).
3. Status of individual conducting the meeting - Agency attorney (NTEU), OIG investigator (NASA), OCI [n2] investigator (Luke I and II), contract mediator (Dover, Forest Service Galeta, FAA Renton), contract investigator (SSA Boston).
4. Presence of Agency attorney or other senior agency officials - Agency attorney [ v62 p228 ] (NTEU, Luke I and II, Dover AFB), supervisor or other management representatives (Forest Service Galeta, FAA Renton), no attorney or management representative (NASA, SSA Boston).
5. Status of Union representative - union representative designated by either complainant, appellant, or employee under investigation (NTEU [n3] , Luke I, NASA), union representative not designated (Dover AFB, Luke II, SSA Boston, Forest Service Galeta [n4] , FAA Renton [n5] ).
In Luke I, the Union representative, was identified by the complainant as her personal representative. That representative was not notified prior to conducting a second mediation session conducted by the OCI investigator between the complainant, an Agency attorney, and an Agency EEO counselor. Luke I, 54 FLRA at 717. The purpose of the mediation session was to attempt resolution, the complainant participated in the mediation and had identified the union president as her personal representative, and an Agency attorney attended part of the mediation session. Accordingly, in Luke I, we found:
"No conflict between the rights of the employee in this case and those of the [u]nion or the rest of the bargaining unit . . . the employee not only never objected to the [u]nion president's presence at the settlement discussions but, `on the contrary, she . . . wanted him to be present.'" Id. at 732-33.
Similarly, Dover AFB, Luke II [n6] , Forest Service Galeta, and FAA Renton all involved mediations in which the complainant was a participant and either an agency attorney or other senior management representative was present [n7] . I dissented from the Majority in these cases because I could not conclude that such mediations constituted formal discussions or grievances that required notification to the Union under § 7114(a)(2)(A) [Dover, 57 FLRA at 312-13; Luke II, 58 FLRA at 538; Forest Service Galeta, 60 FLRA at 655; FAA Renton, 60 FLRA at 823].
The instant case and SSA Boston could not be more different. No facts indicate that "the union is providing direct assistance", that the employee "believes he or she has been wronged", or that the "employee's ability to grieve a condition of employment" has been impeded. See DOJ Asylum Rosedale, 55 FLRA at 1037. The employees were identified as witnesses to a coworker's EEO complaint and provided statements to a neutral contract investigator. Judge's Decision at 4; SSA Boston, 59 FLRA at 875. The employees were advised "that they could contact a Union representative or the Agency's attorney, if they wished". Id. In SSA Boston, the employees themselves apprised the "[u]nion of the pending interviews but did not request the [u]nion to be present." Id. at 876. No mediation occurred that could result in a settlement. The role of the investigator was simply to gather facts which were assembled into a Report of Investigation (ROI). The ROI was then provided to both the complainant and management. Judge's Decision at 5. No Agency attorney or other senior management representative was present during the interviews. See Judge's Decision at 5; Agency Exhibit 9; SSA Boston, 59 FLRA at 875.
Therefore, I struggle to see how the Majority reaches the same result here and in SSA Boston as in Luke I and II and Dover AFB when they are distinguishable on every level. A fact-finding interview is clearly distinct from a mediation. Whereas a mediation may result in a settlement agreement that has the potential to impact other bargaining unit members, the statements gathered by a neutral, contract investigator are used only to prepare a factual summary - the ROI. The ROI is provided to the complainant and management in order to determine whether to process the complaint to hearing, request a final agency decision, or to seek resolution in mediation. Judge's Decision at 5. The employees are witnesses, not complainants, and none requested that the Union act as their representative during the interview, even though they were advised they could do so. Id. at 4.
The Majority fails to, or is unwilling to, recognize these concrete and relevant distinctions. First, the [ v62 p229 ] Majority relies on SSA Boston to find that the contract investigator was a representative of the Agency which in turn relies on our decisions in NASA and Defense Depot Tracy. That reliance was misplaced then, and it is misplaced now. I agree with the Judge that the investigator "was not acting as a representative of [the Agency], but rather as a neutral". Id. at 20. A neutral investigator's role is significantly different than that of the OIG investigator in NASA and the EAP representative in Defense Depot Tracy. In NASA, an OIG investigator interviewed a bargaining unit employee who was suspected of misconduct. NASA, 527 U.S. at 232. The issue before the Authority was not whether the Union had a right to be notified of the interview under § 7114(a)(2)(A), but whether limiting the Union representative's participation during the interview violated § 7114(a)(2)(B). Id. The Authority found the OIG investigator to be an agency employee who makes findings, conclusions, and recommendations. Likewise, the EAP contractor in Defense Depot Tracy, conducted orientation meetings regarding an EAP program that had previously been performed by an Agency employee. The EAP program affected a broad range of personal issues and conditions of employment. Def. Logistics Agency, Def. Depot Tracy, Tracy, Cal., 39 FLRA 999, 1010-13 (1991). The contract EEO investigator here and in SSA Boston conducts a fact-finding interview and prepares a summary report that makes no conclusions, recommendations, or findings. Judge's Decision at 4-5.
Second, SSA Boston relied on Luke II and the D.C. Circuit in Dover AFB v. FLRA to conclude that the EEO fact-finding investigation constituted a grievance. Luke II and Dover AFB involved mediations where the complainant participated and an Agency attorney represented the agency in negotiations. As I noted above, I disagree that an EEO mediation constitutes a grievance for purposes of § 7114(a)(2)(A). However, neither this matter nor SSA Boston involve a mediation and no agency attorney or agency representative was present at either witness interview. Rather, the contract investigator simply interviewed factual witnesses to prepare a summary report.
Third, the Judge correctly notes that in finding that the Union has a right to be present at these interviews, the Union is gaining "a status that management itself did not have, and such a status would have transformed the interview into something quite different". Judge's Decision at 20. This unintended result resurrects my concern in Dover regarding the "awkwardness of attempting to fit a union into a situation where it would have no legitimate basis for taking part in an EEO process" and the inherent conflict between § 7114(a)(2)(A) and the EEOC regulations and ADR Act. See Dover AFB, 57 FLRA at 312. Dover AFB and Luke II share one similarity with the instant case and SSA Boston -- none of the employees requested that the union be present at the respective mediations or fact-finding interviews. The DC Circuit in Dover AFB recognized that an employee's choice whether to have the union present is a relevant factor to balance in determining whether a "conflict" exists between the rights of the union and the employee. The Court found that such a conflict should be resolved in favor of the employee. Dep't of the Air Force, 436th Airlift Wing, Dover AFB, 316 F.3d 280, 287 (D.C. Cir. 2003) (citing NTEU, 774 F.2d at 1189 n.12).
The Majority makes a wide leap to find that an EEO fact-finding interview of witnesses, who did not request that the Union be present, by a contract investigator, who cannot make any conclusions, recommendations, or findings, triggers the same obligations under § 7114(a)(2)(A) as the mediation in Luke I that was conducted by a Defense Department employee mediator with a complainant, who had designated a union representative, while an Agency attorney was present and participated in the mediation. The failure to make these distinctions here and in SSA Boston simply eviscerates the intent and purpose of § 7114(a)(2)(A).
I have no misconceptions that drawing these distinctions will be simple. However, they are distinctions that we must be willing to make if we are to preserve the intent of § 7114(a)(2)(A), while preserving the legitimate interests of individual employees and agency representatives.
I am also concerned that by extending our holdings in Luke I and II and Dover AFB, to SSA Boston and here, we are creating the same "tortured application" for which we were criticized by the D.C. Circuit Court of Appeals in Department of the Air Force v. FLRA, 294 F.3d 192, 198 (D.C. Cir. 2002). The Majority again extends bad precedent even further from the intent of § 7114(a)(2)(A) and does not allow our Judges adequate discretion to balance appropriate factors and weigh relevant distinctions.
I would dismiss this complaint and find that these interviews do not constitute a formal discussion or grievance, that the contract investigator is not a representative of management, and that SSA Boston was wrongly decided.
Footnote # 1 for 62 FLRA No. 48 - Chairman Cabaniss
Footnote # 2 for 62 FLRA No. 48 - Chairman Cabaniss
Office of Complaint Investigation (OCI) is an office within the DOD Civilian Personnel Management Service that conducts EEO fact-finding investigations and mediations for other DOD components. OCI investigators are DOD employees. Luke I, 54 FLRA at 717 n.1.
Footnote # 3 for 62 FLRA No. 48 - Chairman Cabaniss
NTEU involved an employee identified as a witness in an MSPB case. The employee-witness did not identify or request a union representative; the employee-appellant had requested a Union representative for his MSPB case.
Footnote # 4 for 62 FLRA No. 48 - Chairman Cabaniss
Footnote # 5 for 62 FLRA No. 48 - Chairman Cabaniss
Footnote # 6 for 62 FLRA No. 48 - Chairman Cabaniss
In Luke I and Dover AFB, the Majority found that it was the agency attorney and in Luke II, the Agency attorney and other management representatives (including the Commander and Civilian Personnel Officer), not the mediator, who were the "representative[s] of management" for purposes of finding that the elements of § 7114(a)(2)(A) were present. See respectively, 54 FLRA at 723; 57 FLRA at 307; and 58 FLRA at 532-33.