[ v29 p660 ]
The decision of the Authority follows:
29 FLRA No. 57 NUCLEAR REGULATORY COMMISSION Respondent and NATIONAL TREASURY EMPLOYEES UNION Charging Party Case No. 3-CA-60129
DECISION AND ORDER 1
I. Statement of the Case
This unfair labor practice case is before the Authority on exceptions to the attached Administrative Law Judge's Decision filed by the General Counsel and cross-exceptions filed by the Respondent. The issue is whether the Respondent violated section 7116(a)(1) and (8) of the Federal Service Labor - Management Relations Statute (the Statute) by failing to notify the Charging Party (the Union) and affording it an opportunity to be represented at a meeting that was alleged to be a formal discussion within the meaning of section 7114(a)(2)(A) of the Statute. 2 We conclude that the Respondent did not violate the Statute as alleged in the complaint and that the complaint must be dismissed. [PAGE]
On January 2, 1986, a meeting was held between officials of the Respondent, an employee and the employee's private attorney to discuss a proposed settlement of the employee's previously filed Equal Employment Opportunity (EEO) complaint. At the time of the filing of the EEO complaint and the events giving rise to that complaint, the employee was not in a bar-gaining unit position. By the time of the January 2 meeting, however, the employee had been transferred into a position in the unit represented by the Union. While the proposed settlement was discussed at the meeting, no actual settlement was reached at that time. 3
III. Administrative Law Judge's Decision
The Judge found that the Respondent did not violate the Statute as alleged in the complaint. Relying on decisions of the Authority and the courts, particularly, Internal Revenue Service, Fresno Service Center, Fresno California v. FLRA, 706 F.2d 1019 (9th Cir. 1983) (IRS Fresno), the Judge concluded that the substance of the January 2 meeting--the proposed settlement of an EEO complaint--concerned a statutory appeal matter which was not a "grievance" within the meaning of section 7114(a)(2)(A) of the Statute. The Judge also found that a decision cited by the Respondent, Nuclear Regulatory Commission and National Treasury Employees Union, 17 FLRA 792 (1982), did not support its argument that section 7114(a)(2)(A) was not applicable in this case because the employee was not in the bargaining unit when the EEO complaint was filed.
IV. Positions of the Parties
In its exceptions, the General Counsel argues that the Judge erred in failing to address the applicability of the court's decision in National Treasury Employees Union v. FLRA, 774 F.2d 1181 (D.C. Cir. 1985) (NTEU), to this case and in failing to find a violation of the Statute. Based upon the decision in NTEU, the General Counsel contends that the EEO complaint filed under the agency's statutory appeals procedure is a grievance within the meaning of section 7114(a)(2)(A). [ v29 p2 ]
In its cross-exceptions, the Respondent reiterates its argument that the Authority's decision in Nuclear Regulatory Commission is controlling in this case and that the Judge erred in finding otherwise. The Respondent also reiterates arguments made before the Judge that NTEU is not applicable since, according to IRS Fresno, a statutory appeal is not a grievance within the meaning of section 7114(a)(2)(A). The Respondent further argues that Congress intended that the term grievance in section 7114(a)(2)(A) refers only to those grievances filed and pursued under a negotiated grievance procedure. The Respondent also argues that the Union should be imputed to have had knowledge of the January 2 meeting by virtue of a partnership that exists between the employee's attorney and the Union's chief steward. Finally, the Respondent argues that, assuming the other criteria of section 7114(a)(2)(A) are met, the case should be remanded to the Judge for a determination as to the whether the meeting was "formal."
While we agree with the Judge's conclusion that the Respondent did not violate the Statute in this case, our conclusion is based on different reasons.
Under section 7114(a)(2)(A) of the Statute a union is entitled to be represented (1) at a formal discussion, (2) between one or more management representatives and one or more bargaining unit employees, (3) concerning any grievance or any personnel policy or practices or other general condition of employment.
In this case, it is clear that the January 2, 1986, meeting to discuss a proposed settlement of the employee's EEO complaint was a formal discussion between management representatives and an employee who was in the bargaining unit at the time of the discussion. However, we find that the discussion did not concern a grievance or a personnel policy or practice or other general condition of employment within the meaning of section 7114(a)(2)(A).
The term "grievance" in section 7114(a)(2)(A) refers to a grievance of one or more employees in the bargaining unit involved. The exclusive representative of that unit is not entitled to be represented in formal discussions of grievances of non-bargaining unit employees. An EEO complaint meets the definition of "grievance" within the broad definition of that term in section 7103(a)(9) of the Statute and, therefore, under 7114(a)(2)(A). However, a union is only entitled to be represented at a formal discussion of an EEO complaint of an [ v29 p3 ] employee in its unit. In this case, the EEO complaint was filed by an employee who was not in the unit represented by the Union at the time of the events giving rise to the complaint or at the time of the filing of the complaint. In these circumstances, we find that the meeting was a formal discussion of a non-bargaining unit employee complaint and, therefore, was not one in which the Union had a right to be represented under section 7114(a)(2)(A).
Moreover, we find that the meeting in question did not concern "any personnel policy or practices or other general condition of employment" within the meaning of section 7114(a)(2)(A). The legislative history of the provision makes it clear that the term "general" in the provision is intended to limit a union's right to representation to those formal discussions "which concern conditions of employment affecting employees in the unit generally." 124 Cong. Rec. H9634 (daily ed. Sept. 13, 1978) (statement of Mr. Udall) reprinted in Committee on Post Office and Civil Service, House of Representatives, 96th Cong., 1st Sess., Legislative History of the Federal Service Labor - Management Relations Statute, Title VII of the Civil Service Reform Act of 1978, Committee Print No. 96-7, at 926 (1979).
In view of the non-bargaining unit status of the employee at the time of the EEO complaint, the fact that the complaint concerned matters which took place entirely outside the bargaining unit, and the nature of the January 2 meeting, that is, a discussion of the possible settlement of the individual's complaint, we find that the meeting did not concern any condition of employment generally affecting the employees in the bargaining unit.
Based on the above analysis, we conclude that the Union was not entitled to be represented at the meeting under section 7114(a)(2)(A) of the Statute.
We recognize that a union may have an institutional role in being represented at a formal discussion in order "to hear, along with unit employees, about matters of interest to unit employees and be in a position to take appropriate action to safeguard those interests." Department of Defense National Guard Bureau, Texas Adjutant General's Department, 149th TAC Fighter Group (ANG) (TAC), Kelly Air Force Base, 15 FLRA 529, 532 (1984). [ v29 p4 ]
As noted by the parties, the D.C. Circuit in the NTEU case discussed the role a union may have at certain formal discussions concerning employee complaints challenging agency actions. The circumstances presented in that case involved the union's right to be represented at a meeting with a unit employee who was scheduled to appear as a witness at a hearing before the Merit Systems Protection Board involving another unit employee. In reaching the conclusion that the union had a statutory right to be represented, the court rejected a view suggested earlier by the Ninth Circuit in IRS Fresno "that (a) union's only interest in being present at a formal discussion of a grievance stems from the fact that it negotiates and plays an institutional role in the contractual grievance procedure." 774 F.2d 1181 at 1188. The D.C. Circuit viewed the interests of unions more broadly than the Ninth Circuit. Recognizing the fact that employee complaints of discrimination may be covered under both a collective bargaining agreement and a statutory appeals procedure, the D.C. Circuit stated that resolution of such complaints can potentially affect all bargaining unit employees. Thus, in the context of a complaint that could have been filed under either procedure, the court made the following observations regarding the possible effects on bargaining unit employees:
Decisions about what constitutes an unjust dismissal or an unacceptable basis for preferring or rejecting a single employee spills over to the rights and expectations of all unit employees. Remedies for improper employer conduct, such as reinstatement or retroactive seniority, may also affect other bargaining unit employees, since a benefit or opportunity granted to one employee can mean the loss of the same benefit or opportunity for another employee. The impact of these individual complaints on the bargaining unit will be felt regardless of whether the aggrieved employee opts to pursue a negotiated grievance procedure or an alternative statutory procedure.
In this case, we cannot conclude that the Union had any institutional right to be represented at the January 2 meeting in order to protect what the court identified in NTEU as a union's broader interests. Unlike the situation in NTEU, where a meeting was held with a unit employee concerning a matter involving another unit employee, and the effects on [ v29 p5 ] the bargaining unit of actions taken with respect to the latter employee could be identified, the facts in this case differ. They demonstrate that the EEO complaint was personal to the individual who was not in the bargaining unit at the time of the events giving rise to the complaint. Since the January 2 meeting concerned solely the settlement of the EEO complaint where circumstances surrounding the complaint did not involve the bargaining unit, we fail to see a connection between a proceeding involving non-bargaining unit concerns and the Union's right to represent the interests of bargaining unit employees. The fact that the employee happened to be in the bargaining unit at the time of the January 2 meeting does not persuade us to reach a different conclusion.
However, we also recognize that it is possible that a settlement of the EEO complaint in this case, such as, for example, reassignment or promotion of the employee, might have affected employees in the bargaining unit. As to the possible impact of such a settlement on the bargaining unit, we have previously stated that if the adjustment of an EEO complaint results in a change in unit employees' conditions of employment, an agency is obligated to give prompt notice of the change to the exclusive representative of the unit employees and to provide the union with an opportunity to bargain to the extent required by the Statute. U.S. Government Printing Office, 23 FLRA No. 6 (1986). As pertinent to this case, it would have been appropriate for the Respondent to provide notice to the Union of any changes in unit employees' conditions of employment resulting from the settlement meeting and an opportunity to bargain. We need not consider such possibilities, however, since the complaint does not allege that any changes in conditions of employment of bargaining unit employees occurred or that the Respondent failed to notify the Union of any changes.
Having concluded that the Union was not entitled to be represented at the January 2 meeting under section 7114(a)(2)(A) of the Statute, we further conclude that the Respondent's failure to notify the Union of the meeting and to afford it an opportunity to be represented did not constitute a violation of section 7116(a)(1) and (8) as alleged in the complaint. 4 [ v29 p6 ]
The complaint in Case No. 3-CA-60129 is dismissed.
Issued, Washington D.C., September 30, 1987.
Jerry L. Calhoun, Chairman
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY [ v29 p7 ]
Member Frazier, concurring in part and dissenting in part:
As the Authority has set forth in U.S. Department of Justice, Bureau of Prisons, Federal Correctional Institution (Ray Brook, New York), 29 FLRA No. 52 (1987), the Authority continues to adhere to the analytical approach which the Authority has traditionally followed in resolving cases such as this, concerning the right of an exclusive representative to be represented at formal discussions under section 7114(a)(2)(A) of the Statute. Section 7114(a)(2)(A) has various elements, all of which must be found to exist in order for an exclusive representative's right under that section to attach. As the Authority also indicated in FCI (Ray Brook), it is important, when applying that section to particular situations, to consider not only the literal language of section 7114(a)(2)(A), but also Congress' intent as reflected in the legislative history and stated purposes of the overall statutory scheme as well as the purposes of that section.
Following this analytical approach in this case, I conclude, contrary to my colleagues, that all of the elements of section 7114(a)(2)(A) are present, and that a finding that the union had a right to be represented at the meeting in question comports with congressional intent. It follows that the agency committed an unfair labor practice when it failed to provide the union an opportunity to be represented at the meeting that the agency held with a bargaining unit employee to discuss settlement of the employee's pending EEO complaint.
I concur with the determination of my colleagues that the meeting in question fulfilled the criteria of section 7114(a)(2)(A) requiring that (1) there be a discussion, (2) which is formal, (3) between one or more representatives of the agency and one or more employees in the unit. Contrary to my colleagues, I conclude that the meeting also concerned a grievance. The union's right to be represented therefore attached, and the agency committed an unfair labor practice in failing to provide the union with that opportunity.
That the meeting at issue concerned a "grievance" under section 7114(a)(2)(A) is clear. The Authority interprets the term "grievance" in section 7114(a)(2)(A) broadly, based on that term's definition in section 7103(a)(9) of the Statute. For example, FCI (Ray Brook), 29 FLRA No. 52. Section 7103(a)(9) states that "'grievance' means any complaint--(A) by any employee concerning any matter relating to the employment of the employee(.)" As the Authority held in FCI (Ray Brook), this definition may [ v29 p8 ] include a statutory appeal. Accord, NTEU v. FLRA, 774 F.2d 1181, 1184-89 (D.C. Cir. 1985), rev'g Bureau of Government Financial Operations, Headquarters, 15 FLRA 423 (1984). The meeting in this case, held to discuss settling a unit employee's pending EEO complaint, clearly satisfies the literal requirements of this definition. Compare U.S. Department of Justice, United States Marshals Service and International Council of U.S. Marshals Service Locals AFGE, 23 FLRA No. 78 (1986) (where the Authority held that an employee's filing of an EEO complaint constituted the employee's election of a "statutory procedure" under section 7121(d) of the Statute) with U.S. Department of Justice, United States Marshals Service and International Council of U.S. Marshals Service Locals, AFGE, 23 FLRA No. 60 (1986) (where the Authority held that re-complaint counseling procedures in the EEO process did not constitute "statutory procedures" under section 7121(d)).
This conclusion comports with the intent of section 7114(a)(2)(A). The presence of an exclusive representative at a meeting falling within the parameters of section 7114(a)(2)(A) affords the exclusive representative the opportunity to safeguard the interests of unit employees. Department of Defense, National Guard Bureau, Texas Adjutant General's Department, 149th TAC Fighter Group (ANG) (TAC), Kelly Air Force Base, 15 FLRA at 532. Settlement discussions concerning a unit employee's grievance would appear to strongly implicate such unit interests. As the D.C. Circuit discussed in NTEU v. FLRA, 774 F.2d at 1188, "(d)ecisions about what constitutes an unjust dismissal or an unacceptable basis for preferring or rejecting a single employee spills over to the rights and expectations of all unit employees. Remedies for improper employer conduct, such as reinstatement or retroactive seniority, also may affect other bargaining unit employees, since a benefit or opportunity for one employee can mean the loss of the same benefit or opportunity for another employee. The impact of these individual complaints on the bargaining unit will be felt regardless of whether the aggrieved employee opts to pursue a negotiated grievance procedure or an alternative statutory procedure". The court's discussion clearly identifies unit interests which an exclusive representative may have a role in safeguarding through attendance at meetings held to settle outstanding grievances of unit employees.
While the grievance involved an individual complaint and the circumstances of the complaint concerned events that occurred outside the unit, I do not find that either of these circumstances supports any narrower application of the term "grievance" in section 7114(a)(2)(A). As to the first point, the Statute's legislative history indicates that an exclusive [ v29 p9 ] representative's right to be represented under section 7114(a)(2)(A) extends to formal discussions which concern individual, personalized grievances of unit employees. See the remarks of Representative Udall concerning his substitute which later became section 7114, where he explained that "(b)y inserting the work 'general' before 'conditions of employment,' the substitute limits the right of representation to those formal discussions (other than grievance discussions) which concern conditions of employment affecting employees in the unit generally." 124 Cong. Rec. 29,184 (1984). Accord, NTEU v. FLRA, 774 F.2d at 1186.
I also do not see any reason to constrict the application of the term "grievance" in section 7114(a)(2)(A) merely because the events that gave rise to the employee's complaint occurred before the employee was in the unit. The literal language of section 7114(a)(2)(A) is not limited in this manner. Section 7114(a)(2)(A) states that an exclusive representative has a right to be represented at the discussion of "any grievance". The only limitation in section 7114(a)(2)(A) pertaining to unit status requires that the discussion at the meeting involve "one or more employees in the unit". There is therefore no indication in the Statute that the "grievance" must have been filed while the employee was in the unit.
Moreover, the employee was admittedly a unit employee at the time of the settlement meeting. The grievance had therefore plainly become, in the words of the majority, "a grievance of one or more employees in the bargaining unit involved." Such a meeting, involving discussion of management's proposals to resolve allegations of improper employer conduct, clearly had the potential to affect unit employees' rights and expectations in the EEO area, as well as the interests of those employees relating to particular benefits or opportunities which management was willing to proffer to settle the grievant's EEO complaint. In an analogous situation, where an employee had initiated a "grievance" (for example by filing an EEO complaint, or filing a grievance under an agency grievance procedure) prior to the certification of an exclusive representative, there would not appear to be any purpose served by withholding from the subsequently certified union the opportunity to safeguard unit interests during settlement discussions concerning the still pending grievance merely because the grievance had been initiated prior to the time that the union assumed the role of an exclusive representative.
Based on these determinations I conclude that the union in this case had a right under section 7114(a)(2)(A) to be represented at the meeting in dispute. Since the agency neither notified the exclusive representative of the meeting, nor provided it with an opportunity to be represented, the [ v29 p10 ] agency violated the Statute and committed the unfair labor practices alleged. I therefore dissent from my colleagues' contrary determination.
Issued, Washington, D.C., September 30, 1987.
Henry B. Frazier III, Member [ v29 p11 ]
UNITED STATES NUCLEAR REGULATORY COMMISSION Respondent and NATIONAL TREASURY EMPLOYEES UNION Charging Party Case No.: 3-CA-60129 Dennis Dambly, Esq. Neal E. Abrams, Esq. For the Respondent Ira Sandron, Esq. For the General Counsel Catherine B. Clark, Esq. For the Charging Party Before: WILLIAM NAIMARK Administrative Law Judge
Statement of the Case
Pursuant to a Complaint and Notice of Bearing issued on April 30, 1986, by the Regional Director for the Federal Labor Relations Authority, Washington, D.C., a hearing was held before the undersigned on June 16, 1986 at Washington, D.C.
This case arose under the Federal Service Labor - Management Relations Statute (herein called the Statute). It is based on a charge filed on January 23, 1986 by National Treasury Employees Union (herein called the Union) against United States Nuclear Regulatory Commission (herein called Respondent). [PAGE]
The Complaint 5 alleged, in substance, that on or about January 2, 1986, Respondent held a meeting with a bargaining unit employee to discuss her Equal Opportunity Complaint. Further, that such meeting was held without notice to the Union and affording it an opportunity to be represented as required by Section 7114(a)(2)(A) of the Statute - all in violation of Section 7116(a)(1) and (8) of the Statute.
Respondent's Answer, dated May 13, 1986, denied the essential allegations of the Complaint as well as the commission of any unfair labor practices.
All parties were represented at the hearing. Each was afforded full opportunity to be heard, to adduce evidence, and to examine as well as cross-examine witnesses. Briefs were filed with the undersigned which have been duly considered.
Upon the entire record herein, from my observation of the witnesses and their demeanor, and from all of the testimony and evidence adduced at the hearing, I make the following findings and conclusions:
Findings of Fact
1. At all times material herein the Union has been, and still is, the exclusive representative of a nationwide unit of Respondent's professional and non-professional employees with specified exclusions from said unit.
2. Lisa Anne Shea has been employed by Respondent since 1979. In September, 1985 she was an auditor in Respondent's Office of Inspector and Audit, at which time the employee was not within the bargaining unit. On September 10, 1985, while Shea was still an auditor, she filed an Equal Employment Opportunity (EEO) Complaint in which she alleged sexual harassment by two supervisors resulting in her being denied a career ladder promotion to a GS-12. [ v29 p2 ]
3. Since October, 1985 6 Shea has been employed by Respondent as a License Fee Examiner, Office of Administration, License Fee Management Branch in Bethesda, Maryland. While so employed since that date Shea has been a member of the bargaining unit. 7
4. On December 3 Shea appeared at the office of Alan Rosenthal, the EEO review officer for Respondent assigned to review her EEO Complaint. As requested, Shea came to Rosenthal's office to drop off copies of her previous year's performance appraisal. There was some discussion between them concerning the EEO investigation report which Shea had not received. Rosenthal explained she would get it soon; that he expected to set up a settlement meeting with her. Shea mentioned that she would bring her counsel to the meeting. Rosenthal stated that it wasn't necessary; that it would be an easy meeting and there would be no trouble getting a settlement. He also commented that he didn't understand why it took her so long to file the Complaint on harassment and Shea remarked that his comment was distressing since he was supposed to be impartial.
5. On December 23 Shea spoke to Edward Tucker, Manager of the Civil Rights Program, who called her to pick up half of the investigator's report. He told the employee that she would be meeting with Rosenthal in early January; that the settlement offer would fulfill her needs and she should agree to it.
6. Another conversation ensued between Tucker and Shea on December 24 when the latter appeared to pick up the balance of the investigative report. Tucker again stated that the employee should cooperate with the settlement offer she would receive soon.
7. The settlement meeting occurred on January 2 at Rosenthal's conference room. Attending thereat were Rosenthal, Tucker, Attorney Marvin L. Itzkowitz, and John Cho - all management representatives - as well as Shea and [ v29 p3 ] her attorney, Janet Aldrich. At the meeting, which was called by management, Rosenthal handed the proposed settlement to Shea and her attorney. He went over the details thereof and said it fulfilled the employee's needs. Aldrich said the settlement did not address several items, such as: Shea's performance appraisal, whether she would be transferred to a new job permanently, attorney's fees, and other relief for Shea to compensate her being held back for 18 months. Aldrich also indicated she wanted Shea's rating be changed from fully satisfactory to outstanding. Rosenthal refused to do so but offered to withdraw the rating and that Shea be without one for that period. Further, a new rating would be given her after three months in her new job. This was refused and Shea would not sign the settlement.
Rosenthal then replied that Shea was not playing fair if she did not sign. He stated that he would report back to the Commission and advise them to fight it all the way through the courts. At the close of the meeting Aldrich said that she and Shea were willing to negotiate, and they were always open for discussion in the future.
B. Upon leaving the conference room Tucker asked Shea what she was doing by not signing the settlement. He stated she was not playing fair and was throwing away a good deal. Tucker mentioned that Shea would not get a better deal even if she went to an EEO hearing.
9. It is undisputed that Respondent did not notify the Union, or Chapter 208 NTEU, of the January 2 meeting, nor were any representatives of either afforded an opportunity to attend the meeting.
It is contended that the meeting on January 2, 1986 was a formal discussion, within the meaning of Section 7114 (a)(2) (A) 8 of the Statute, which required Respondent to notify [ v29 p4 ] the Union and afford it an opportunity to be present thereat. Failure by Respondent to abide by that obligation is alleged to be violative of Section 7118(a)(1)and (8) of the Statute.
While recognizing that the present controversy concerned an EEO Complaint filed pursuant to the statutory appeals procedures of the Equal Employment Opportunity Commission, General Counsel and the Union insist that the cause herein is still controlled by the statutory language in 7114(a) (2)(A). Both parties, in a detailed analysis of the past decisions of the Authority, as well as the Circuit Courts, maintain that all determinations which restrict the right of a bargaining representative to be present when an employee pursues a complaint of discrimination, as an appeal under the EEOC process, have no applicability herein. Accordingly, consideration is given to the authoritative conclusions in this regard.
Initially the Authority held that a meeting to discuss an EEO Complaint concerned a "grievance" within the meaning of Section 7114(a) since an EEO Complaint fell within the broad definition of Section 7103(a)(9) 9 of the Statute. [ v29 p5 ] Internal Revenue Service, Fresno Service Center, Fresno, California, 7 FLRA 371. However, the Court of Appeals tor the Ninth Circuit reversed the Authority in Internal Revenue Service, Fresno Service Center, Fresno California v. Federal Labor Relations Authority, 706 F.2d 1019 (9th Cir. 1983). Taking note that the EEO Complaint in the cited case was filed pursuant to statutory procedures of the EEOC, the Court concluded that an EEO claim of discrimination did not constitute a "grievance" within the meaning of 7114(a)(2)(A) of the Statute. That statutory provision, stated the Court, does not govern the EEO procedures in the case since the latter are separate and distinct from the grievance process to which Sections 7103 and 7114 of the Statute are directed.
A subsequent case decided by the Authority involved the question of whether a pre-trial interview of a potential witness in preparation for a scheduled hearing before MSPB constituted a formal discussion within the meaning of Section 7114(a)(2)(A). It was held in Bureau of Government Financial Operations, Headquarters, 15 FLRA 423, that it was not a formal discussion and the failure by the agency to provide the Union an opportunity to be present did not violate Section 7116(a)(1) and (8) of the Statute. The Authority in the cited case adopted the rationale of the Ninth Circuit in IRS, Fresno, supra, and concluded that a grievance within the meaning of Section 7114(a)(2)(A) does not encompass a statutory appeal. Thus, the meeting, held in connection with an MSPB appeal, did not concern a "grievance" under that section of the Statute. It was also pointed out by the Authority that its determination was not inconsistent with the rights granted an exclusive representative under Section 7121(b) of the Statute and those granted employees under Section 7114(a)(5) thereof. As to the former section, the Union has been granted the sole right to represent an employee in connection with a grievance filed [ v29 p6 ] under a negotiated grievance procedure, and it may be present during a negotiated grievance proceeding if the employee elects to present a grievance on his own behalf. Under Section 7114(a)(5) an employee may select his representative, other than the Union, in any grievance or appellate action except one initiated through a negotiated grievance procedure.
The most recent decision of the Authority coming to the attention of the undersigned which concerns issues similar to the instant case is U.S. Government Printing Office, 23 FLRA No. 6. An employee therein filed an EEO Complaint alleging she was not considered for a position based on her race and sex. The employee, although not selecting the Union to represent her with respect to her complaint, entered into an informal settlement thereof which provided she would be promoted to the next available vacancy of said position. No notification was given beforehand to the union nor was it afforded an opportunity to bargain over the adjustment. Based on a charge filed by the Union, a Complaint was issued alleging a violation of Section 7116(a)(1) and (5) of the Statute by reason of the agency's dealing directly with the employees and reaching a settlement re her EEO Complaint of discrimination - all without the presence of the exclusive representative.
In finding that the agency in the cited case did not commit an unfair labor practice, the Authority concluded that no bypass resulted from its action in resolving the EEO Complaint by dealing with the employee. The basis for such determination, according to the decision, rests on the further conclusion that since the individual elected to pursue her complaint of discrimination as an appeal under EEO regulatory procedures, the union had no statutory right to represent her. As indicated by the Authority, nowhere in the EEO regulations is there any provision for the exclusive representative's presence, unless the latter is the complainant's designated representative.
Turning to the case at bar, the question remains whether, despite the foregoing rationale enunciated by the Authority when an employee pursues a complaint under the EEOC regulations, the Union must be afforded an opportunity to represent the employee under Section 7114(a)(2)(A). General Counsel would urge the inapplicability of U.S. Government Printing Office, supra, on the ground that said case involved a bypass situation and was not concerned with [ v29 p7 ] the right of the exclusive representative to represent employees at formal discussions which impact on conditions of employment.
While I recognize that the instant case does not involve a bypass allegation, nevertheless I am persuaded that the import of the past decisions by the Authority do not sustain the position of the Union and the General Counsel herein. The IRS, Fresno case, supra, expressly declares that the term "grievance" as recited in Section 7114(a)(2)(A) was not intended to include a statutory appeal proceeding which an employee pursued in connection with a complaint of discrimination. Ascribing to the meeting with Shea the term "formal discussion" does not endow the Union with a right of representation where the matter is regulated by a statutory appeal process. The negotiations by Respondent with employee Shea still involved her allegation of discrimination which she elected to have handled via the EEO appeal procedure with her own personal representative. They were not intended to embrace or concern working conditions of unit employees, but merely to address her grievance. Since no right attaches to the Union to be present during negotiations to adjust such grievance (unless the Union is chosen as the employee's representative), the role of the bargaining representative must necessarily be limited to situations where the adjustment or settlement impacts on the bargaining unit. 10 However, no settlement was reached with Lisa Shea in the case at bar. Thus, it cannot be concluded that a change resulted which affected employees' conditions of employment and imposed an obligation upon Respondent to bargain as required. Such a result was neither alleged in the present complaint nor the subject of litigation at the hearing.
Accordingly, and in view of the foregoing, I conclude that Respondent did not violate Section 7116(a)(1) and (8) of the Statute, as alleged, by reason of its meeting with [ v29 p8 ] employee Lisa Shea concerning the grievance which she filed pursuant to the EEO statute appeal procedures. 11
Having found that Respondent did not violate the Statute as alleged, it is recommended that the Authority issue the following:
The Complaint in Case No. 3-CA-60129 be, it the same hereby is, dismissed.
WILLIAM NAIMARK Administrative Law Judge Dated: March 26, 1987 Washington, D.C.
Footnote 1 Member Frazier's concurrence in part and dissent in part follows this opinion.
Footnote 2 Section 7114(a)(2)(A) provides: (2) An exclusive representative of an appropriate unit in an agency shall be given the opportunity to be represented at-- (A) any formal discussion between one or more representatives of the agency and one or more employees in the unit or their representatives concerning any grievance or any personnel policy or practices or other general condition of employment(.)
Footnote 3 The record indicates though that a settlement was ultimately reached. See Transcript at 109-110.
Footnote 4 In view of this result, it is unnecessary to address the other arguments of the parties.
Footnote 5 At the hearing, paragraph 9 of the Complaint was, upon motion, renumbered to 8, and all subsequent paragraphs renumbered accordingly. Moreover, upon further motion, paragraph 4, of the Complaint was deleted and a new paragraph 4 substituted which alleged that the four named individuals were representatives of Respondent within the meaning of Section 7114(a)(2)(A) of the Statute. This allegation was deemed admitted by Respondent.
Footnote 6 Unless otherwise indicated, all dates hereinafter mentioned occur in 1985.
Footnote 7 Although not clearly spelled out in the record, it would appear that Chapter 208, NTEU, is the designated agent of the Union to represent the employees at this facility of Respondent's Office of Administration.
Footnote 8 7114 Representation rights and duties (a)(2) An exclusive representative of an appropriate unit in an agency shall be given the opportunity to be represented at- (A) any formal discussion between one or more representatives of the agency and one or more employees in the unit or their representatives concerning any grievance or any personnel policy or practices or other general condition of employment;"
Footnote 9 7103(a)(9) 'grievance' means any complaint "(A) by any employee concerning any matter relating to the employment of the employee; "(B) by any labor organization concerning any matter relating to the employment of any employee; or "(C) by any employee, labor organization, or agency concerning- (i) the effect or interpretation, or a claim of breach, of a collective bargaining agreement; or (ii) any claimed violation, misinterpretation or misapplication of any law, rule or regulation affecting conditions of employment;"
Footnote 10 In U.S. Government Printing Office, supra, the Authority recognized that if an adjustment or settlement of an EEO Complaint is reached, it might give rise to an impact on other employees. This could result where a change is made in their conditions of employment. In such an instance, an agency would have an obligation to notify the exclusive representative of the change and provide it with an opportunity to bargain thereon.
Footnote 11 Respondent argues that since Shea was not a member of the bargaining unit when she filed her grievance, the matter did not concern conditions of employment for unit employees. Hence, it is contended Section 7114(a)(2)(A) would not be applicable herein. In support of that position the agency cites Nuclear Regulatory Commission, 17 FLRA 972. The cited case does not support Respondent's contention in this regard. The Authority therein declared that procedures for filling supervisory positions are matters outside the duty to bargain since they involve non-bargaining unit positions. Thus, the agency had no duty to bargain with the union as to its role in challenging supervisory selections.