U.S. Department of the Air Force, 436th Airlift Wing, Dover Air Force Base, Dover, Delaware (Respondent) and American Federation of Government Employees, Local 1709 (Charging Party)
[ v57 p304 ]
57 FLRA No. 65
U.S. DEPARTMENT OF THE AIR FORCE
436th AIRLIFT WING
DOVER AIR FORCE BASE
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1709
DECISION AND ORDER
June 28, 2001
Before the Authority: Dale Cabaniss, Chairman; Donald S. Wasserman and Carol Waller Pope,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 Respondent's exceptions. [n2]
The complaint alleges that the Respondent violated §§ 7116(a)(1) and (8) of the Federal Service Labor-Management Relations Statute (Statute) by conducting a formal discussion with a bargaining unit employee concerning the mediation of a formal Equal Employment Opportunity (EEO) complaint without affording the Union notice and an opportunity to be represented pursuant to § 7114(a)(2) of the Statute. The Judge 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 and Judge's Decision
Elzey F. Jones, Jr. is a member of the bargaining unit represented by the Union. The Union and the Respondent have a collective bargaining agreement, which provides that the negotiated grievance procedure (NGP) does not cover grievances concerning EEO complaints.
In November 1999, Mr. Jones filed a formal EEO complaint in connection with a suspension that he had received. In early 2000, pursuant to EEOC regulations, 29 C.F.R. pt. 1614, Jones requested mediation of his complaint.
The Respondent requested that the General Counsel's Office of the Department of Air Force assign a mediator. In response, the General Counsel's Office referred this request to the Resolution Group, a private firm having a contract with the Air Force. This contract provides that the Resolution Group will provide mediation services pursuant to the Alternate Dispute Resolution Act, 5 U.S.C. § 571 et seq. (ADR Act). Kathy Fragnoli was designated as the mediator.
The Resolution Group provided the Respondent's EEO Officer available dates for the mediation. After coordination with the Respondent's legal representative, Assistant Staff Judge Advocate Captain Richard Rockenbach, the mediation was scheduled at least a week prior to the agreed upon date. In response to Mr. Jones's request, the Respondent, through its EEO Officer, arranged for the mediation to be held at a local hotel. Prior to the mediation, the Resolution Group sent Mr. Jones and Captain Rockenbach information concerning the mediation. At the mediator's request, Mr. Jones and Captain Rockenbach signed an agreement regarding the confidentiality of the mediation.
The mediation session was attended by Mediator Fragnoli, Mr. Jones, and Captain Rockenbach. Captain Rockenbach, who had no supervisory authority over Mr. Jones, had authority to resolve the complaint within parameters set by the squadron commander. The Respondent's EEO Officer did not attend the mediation. The session was led by and followed a format established by Mediator Fragnoli. It lasted approximately six hours, of which about 20% was spent in joint sessions and the rest in individual caucuses. The Union was neither [ v57 p305 ] notified of, nor given an opportunity to attend, the mediation.
B. Judge's Decision
Relying on Luke Air Force Base, Arizona, 54 FLRA 716 (1998) (Luke), rev'd Luke Air Force Base v. FLRA, 208 F.3d 221 (9th Cir. 1999) (Table), cert. denied, 121 S. Ct. 60 (2000), the Judge concluded that the January 18, 2000 mediation session was a formal discussion within the meaning of § 7114(a)(2)(A) and that the Respondent violated the Statute by failing to provide the Union notice and an opportunity to be represented at the mediation session.
In so concluding, the Judge analyzed whether each of the elements of § 7114(a)(2)(A) had been met. The Respondent conceded that the mediation session was a discussion but argued that the session was not formal, attended by a representative of the agency, or about a grievance.
As to whether the meeting was formal, after listing the relevant formality factors set out in Luke, the Judge noted several facts that led him to conclude that the meeting was formal. Those facts included the meeting's off-site location; the meeting's length (6 hours); the necessity of submitting confidentiality agreements; and the mediator's control over, as well as the structure of, the meeting.
Consistent with the Authority's decision in Luke, the Judge found it unnecessary to determine whether Mediator Fragnoli was a representative of the agency. Here, as in Luke, the Judge found that the Judge Advocate attorney was a representative of the agency because he represented management's interests at the mediation and had authority to settle the case.
Finally, and again relying on Luke, the Judge concluded that the mediation session did concern a grievance. In reaching this conclusion, the Judge rejected the Respondent's arguments that EEO complaints are not grievances because they were excluded from the NGP here, and the mediation session was conducted pursuant to EEO procedures and the ADR Act.
III. The Respondent's Exceptions
A. Formality of the Discussion
The Respondent raises numerous arguments concerning the formality of the discussion in this case. First, the Respondent argues that a mediation session by its very nature is conciliatory and informal and therefore cannot be considered a formal discussion. The Respondent asserts that the EEOC has required agencies to develop ADR programs in connection with EEO complaint processing and intends those ADR programs to be a part of the informal efforts to resolve EEO complaints at the lowest possible level. Respondent's Exceptions (Res. Ex.) 24-25. Thus, the Respondent asserts that pursuant to the Supreme Court's decision in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. 467 U.S. 837 (1984) (Chevron), the Authority must defer to the EEOC and hold that mediation conferences, as well as other forms of ADR, offered in connection with the processing of an EEO complaint are not formal discussions under the [Statute]. Res. Ex. 25.
Secondly, even if mediation sessions can sometimes be formal discussions, the Respondent argues that the session here was not formal based on the factors the Authority applied in Luke. Specifically, the Respondent asserts that the mediation session was not formal because it was called by Mr. Jones rather than an investigator as in Luke and was held at a neutral place. With regard to the factor of what management representatives attended the meeting, the Respondent points out that its EEO Counselor did not attend the mediation, whereas in Luke the agency's Chief EEO Counselor did so attend.
Continuing its assertion that this discussion is distinguishable from Luke, the Respondent points out that the Judge concluded that Mr. Jones's attendance at the meeting was voluntary. The Respondent also notes that the meeting's only agenda was resolving the EEO complaint. With regard to the length of the session, the Respondent points out that approximately 5 hours of the 6-hour meeting were spent in private caucuses between the mediator and either Mr. Jones or Captain Rockenbach.
Finally, concerning the time during which all three were together, the Respondent specifically excepts to the Judge's decision for failing to acknowledge that there were at least four sessions of approximately 15-minutes each that were spread throughout the day. Res. Ex. 12.
B. Representative of the Agency
The Respondent challenges the Judge's finding that Captain Rockenbach was a representative of the agency during the mediation session. Asserting that Captain Rockenbach merely served as the attorney for the Secretary of the Air Force, the Respondent argues that a more active management presence than that of a lawyer representing a client in a legal dispute is required to trigger § 7114(a)(2)(A). Res. Ex. 36. The Respondent points out that Captain Rockenbach had no supervisory authority over Mr. Jones, and neither called nor presided over the mediation of Jones's complaint. [ v57 p306 ]
Nor, in the Respondent's view, could Mediator Fragnoli be considered a representative of management. As a neutral, independent mediator, her purpose, the Respondent asserts, was to facilitate the resolution of the complaint.
C. EEO Complaint As a Grievance
The Respondent argues that EEO complaints pursued through the EEOC's procedures are not grievances under the Statute. The Respondent notes that 5 U.S.C. § 7121(d) establishes that EEO complaints may be raised under the statutory or grievance procedure, but not both. Relying on legislative history, the Respondent argues that Congress intended § 7121(d) to narrow the definition of grievance set out in § 7103(a)(9).
The Respondent insists that the EEO process is within the exclusive province of the EEOC and that the provisions of the Statute have no bearing upon EEO complaints. Res. Ex. 15. The Respondent asserts that the Statute's purpose is to foster collective needs of employees as contrasted with the EEO program which focuses on unique, individual needs. The Union should not, according to the Respondent, have an absolute right to attend EEO mediation conferences if not invited by the individual employee.
The Respondent also argues that in this case discussions about EEO complaints are not discussions about grievances because the parties have agreed that such complaints are excluded from the NGP. The Respondent asserts that the Union has waived any interest in the processing of such complaints.
D. Conflict with Other Laws
The Respondent argues that finding the mediation session to be a formal discussion would conflict with the confidentiality requirements of the EEOC's regulations and the ADR Act. The Respondent points out that ADR sessions are confidential in nature to facilitate a candid interchange. Union attendance, pursuant to § 7114(a)(2)(A), would, in the Respondent's view, have a chilling effect on candid conciliatory discussions. The Respondent goes on to argue that the Authority cannot cure this problem by conditioning the Union's right to attend such ADR sessions upon a confidentiality agreement. Further, the Respondent asserts that the Union is not a party to the dispute and thus would not be bound by the confidentiality provisions of the ADR Act.
Finally, the Respondent points out that topics discussed at ADR sessions may involve information contained in records that are statutorily protected from disclosure. As examples, the Respondent points out that the EEO complaint files are protected from disclosure by the Privacy Act and such files could, in certain cases, involve information that must be kept confidential pursuant to the Public Health Services Act.
IV. Analysis and Conclusions
As explained below, we find that the mediation session of the 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 establish that the presence of a union representative at a mediation session would conflict with EEOC regulations or the ADR Act. Therefore, we hold that the Respondent violated § 7116(a)(1) and (8) by failing to provide the Union notice and an opportunity to be represented at that mediation session.
A. The Mediation Session Was a "Formal Discussion" Within the Meaning of § 7114(a)(2)(A)
In order for a union to have the right to representation under § 7114(a)(2)(A), there must be (1) a discussion; (2) which is formal; (3) between a representative of the agency and a unit employee or the employee's representative; (4) concerning any grievance or any personnel policy or practice or other general condition of employment. Luke, 54 FLRA at 723; Gen. Servs. Admin., 48 FLRA 1348, 1354 (1994) (GSA). It is undisputed that the Respondent engaged in a discussion within the meaning of § 7114(a)(2)(A), and, thus, we will not address this requirement. However, the Respondent does challenge the Judge's conclusions regarding the other three requirements.
1. The Mediation Session Was "Formal"
The Respondent's argument that a mediation session, by its very nature, cannot be a formal discussion lacks merit because the Authority has already determined otherwise. See Luke, 54 FLRA 716. The fact that the EEOC has required agencies to establish ADR procedures in an effort to informally resolve complaints is not determinative of whether a meeting to discuss such a complaint is a formal discussion under § 7114(a)(2)(A). Rather, that determination can be reached only after application of the Authority's formal discussion criteria.
We recognize that the EEOC has opined, in the comments announcing its ADR rule, that the activity conducted in connection with an agency ADR program during the EEO process would not be a formal discussion within the meaning of the Civil Service Reform Act. 64 Fed. Reg. 37,644, 37,645 (1999). However, we reject the Respondent's argument that Chevron requires [ v57 p307 ] that we defer to the EEOC's view in this regard. First, interpretations which lack the force of law -- do not warrant Chevron-style deference. Christensen v. Harris County, 120 S. Ct. 1655, 1657 (2000). The EEOC's comments in its Federal Register notice do not have the force of law. Second, Chevron only grants an agency deference when it is offering a permissible construction of the statute which it administers. 467 U.S. at 837. The passage quoted from the Federal Register reflects that the EEOC has interpreted the Federal Service Labor-Management Relations Statute which is administered by the Authority, not the EEOC.
With regard to whether this particular mediation was a formal discussion, the Authority has advised that the totality of the circumstances presented must be examined and has listed a number of relevant factors: (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. GSA, 48 FLRA at 1355. We note that [t]hese factors are illustrative. Luke, 54 FLRA at 724.
Examining the totality of the circumstances, we find that the discussion in this case closely parallels the one that occurred in Luke. In both cases: the meetings were scheduled more than a week in advance; the established purpose of the meetings was to mediate and resolve an EEO complaint; the attendees were provided information concerning the mediation by the mediator in advance of the meeting; the meetings were held away from the employee's work site; attendees at the meetings included an attorney from the Judge Advocate's Office, who was not the bargaining unit employee's supervisor, and a facilitator, who attempted to resolve the EEO complaint at issue; and, the meetings followed a traditional mediation format. See Luke, 54 FLRA at 724-28. In addition, in this case the attendees signed a confidentiality agreement in advance of the meeting a fact that evidences the formal nature of the mediation.
The Respondent's attempts to distinguish Luke fail. First, the Respondent points out that unlike the mediation in Luke, attendance at the mediation here was voluntary. However, in Luke, the Authority concluded that the discussion was formal even if attendance were not mandatory. 54 FLRA at 728. Second, the Respondent notes that unlike the mediation in Luke, the meeting here was held off of agency premises. Again, this is beside the point because both here and in Luke the relevant fact is that the meeting was held outside the employee's immediate work area. Id. at 726. As the Authority explained in Luke, [m]eetings held outside an employee's immediate work area are associated with formality, while those held in the work area are not. Id.
Third, the Respondent states that the agency's EEO Counselor attended the mediation in Luke but did not do so here. However, in Luke, the Authority did not find that the EEO counselor was a management representative and therefore did not find the counselor's attendance relevant to the formality factor regarding what management representatives attended the meeting. Id. at 724. Fourth, the Respondent points out that here, unlike in Luke, the complainant called for the mediation session. Although it is correct that pursuant to EEO regulations, Mr. Jones initiated the mediation of his complaint, the Respondent was involved in setting up the mediation, e.g., coordinating available dates, scheduling the meeting at least a week in advance, arranging for the session to take place at a local hotel. Accordingly, the meeting was called with extensive involvement by the Respondent.
Finally, the Respondent argues that the one hour during which the parties were all together actually consisted of four separate sessions spread throughout the day, each lasting approximately 15-minutes. The fact that the parties met jointly for several short periods does not undermine the formality of the meeting. Pursuant to Authority precedent, even one meeting of short duration has been held to be a formal discussion under the Statute. Office of Program Operations, SSA, 15 FLRA 70, 73 (1984) (finding a meeting that only lasted about 15 minutes to be formal). Indeed in Luke, the mediation had no sessions involving all participants and was still found to be a formal discussion. Luke, 54 FLRA at 725.
In sum, considering the totality of the circumstances and Authority precedent, we are persuaded that the evidence supports the Judge's conclusion that the mediation session of the EEO complaint was a formal discussion within the meaning of § 7114(a)(2)(A).
2. The Respondent's Attorney Was a "Representative of the Agency"
Just as in Luke, the Respondent's representative during the discussion was an attorney from the Judge Advocate General's Office . . . [who] had settlement authority to resolve the case. 54 FLRA at 730. As such, Captain Rockenbach is appropriately characterized as a representative of the agency in this case.
The Respondent argues that Captain Rockenbach was not Mr. Jones's supervisor and that attorneys representing a client do not become representatives of the agency. As the Authority noted in Luke, nothing in section [ v57 p308 ] 7114(a)(2)(A) of the Statute requires that a `representative' be a supervisor. Id. And, consistent with the Authority's longstanding precedent, attorneys who are representing clients can be representatives of the agency for the purposes of § 7114(a)(2)(A). See VAMC, Long Beach, Cal., 41 FLRA 1370, 1379 (1991), aff'd, 16 F.3d 1526 (9th Cir. 1994).
3. The Mediation Concerned a "Grievance"
a. Complaints Pursued Through the EEOC's Procedures Are "Grievances"
Relying on the 9th Circuit's reversals of the Authority in Luke and IRS, Fresno Service Center, Fresno, California v. FLRA, 706 F.2d 1019 (9th Cir. 1983), the Respondent argues that EEO complaints pursued through a statutory procedure are not grievances under § 7114(a)(2)(A) of the Statute. The Authority has heretofore rejected this argument. Luke, 54 FLRA at 730; Marine Corps Logistics Base, Barstow, Cal., 52 FLRA 1039 (1997).
In light of the 9th Circuit's recent reversal of Luke, we take this opportunity to thoroughly review this issue in this case. Our review of the language, legislative history, and purpose of the Statute supports the conclusion that complaints pursued through the EEOC procedures are grievances. Accordingly, we reject the Respondent's arguments regarding this issue and do not acquiesce in the 9th Circuit's view of the scope of the term grievance.
(1) The Express Language of the Statute
Section 7114(a)(2)(A) of the Statute broadly provides for union attendance at meetings concerning any grievance. To ascertain the scope of the term grievance in § 7114(a)(2)(A), the first place to look is the Statute's express definition of grievance in § 7103(a)(9).
The express language of § 7103(a)(9) provides no basis for limiting the definition of grievance, as the Respondent argues here, so as to exclude complaints brought pursuant to EEO statutory procedures. To the contrary, the Statute defines grievance as:
(A) by any employee concerning any matter relating to the employment of the employee[.]
5 U.S.C. § 7103(a)(9)(A) (emphasis added). By its plain terms, the Statute's broad definition of grievance encompasses any employment-related complaint, regardless of the forum in which the complaint may be pursued. Congress's repeated use of the modifier any underscores its intent that the definition be as inclusive as possible. In this case, Mr. Jones's complaint that he was the victim of illegal discrimination by his employing agency is undeniably a complaint by [an] employee concerning [a] matter relating to [his employment], i.e., a grievance under the Statute's definition. In light of the above analysis, we do not acquiesce in the Ninth Circuit's determination that the formal discussion right does not apply during EEOC proceedings because they are discrete and separate from the grievance process to which 5 U.S.C. §§ 7103 and 7114 are directed, IRS, Fresno v. FLRA, 706 F.2d at 1024. Further, we reject the Respondent's argument (Res. Ex. 15) that the provisions of the Statute have no bearing upon EEO complaints.
Contrary to the Respondent's arguments, § 7121 also provides no basis for limiting the definition of grievance. On the contrary, § 7121 indicates specifically that a grievance includes both those complaints filed through the NGP and those filed through alternative statutory procedures. Subsections 7121(d) and (e) provide that aggrieved employees affected by illegal discrimination may raise these matters under either a statutory procedure or a NGP, but not both. 5 U.S.C. §§ 7121(d), (e). As the D.C. Circuit held with regard to these subsections:
[I]f the term "grievance" referred only to disputes pursued through [NGPs], § 7121(d) and (e) would not be worded to require an "aggrieved employee" (emphasis supplied) to elect to pursue a remedy under either a negotiated procedure or a statutory procedure. An "aggrieved employee" - i.e., one with a grievance - would by definition necessarily pursue his grievance under a negotiated procedure.
NTEU v. FLRA, 774 F.2d 1181, 1187 (D.C. Cir. 1985).
Section 7121(a)'s reference to § 7121(d) and (e) in discussing the scope and exclusivity of NGPs also indicates that a grievance includes complaints filed under statutory procedures. Section 7121(a) provides that any collective bargaining agreement shall include procedures for the settlement of grievances. These procedures, however, are not entirely exclusive. Section 7121(a) states in this regard that NGPs are the exclusive administrative procedures for resolving grievances that fall within the NGP's coverage, [e]xcept as provided in subsections (d) [and] (e) . . . of this section. Accordingly, this section recognizes that discrimination complaints filed under statutory procedures are in fact grievances and provides that this class of grievances may be processed through either a contractual or a statutory procedure. See NTEU v. FLRA, 774 F.2d at 1187-88 [ v57 p309 ] ([T]he statutory procedures referred to in § 7121(d) and (e) are also procedures for resolving grievances.).
Finally, the grievances referred to in § 7114 must be broader than the grievances that are processed through the NGP pursuant to § 7121. Union presence is already assured throughout the NGP, pursuant to § 7121(b)(1)(C)(i) and (ii). If § 7114(a)(2)(A)'s grievance was limited to grievances processed through the NGP, then the formal discussion right set out in § 7114 would merely duplicate the rights provided in § 7121(b)(1)(C). Such a reading would render that portion of § 7114(a)(2)(A) superfluous. See Kawaauhau v. Geiger, 523 U.S. 57, 63 (1998) (Court hesitant to adopt interpretation of statute that renders superfluous portion of same law).
(2) The Legislative History of the Statute
The Statute's legislative history also does not support the Respondent's position. The Respondent points to a passage in the House Report concerning § 7103(a)(9). Commenting on what was to become the definition of grievance, the House Report stated that [i]t should be noted that, although this subsection is virtually all-inclusive in defining `grievance' section 7121 excludes certain grievances from being processed under a negotiated grievance procedure, thereby limiting the net effect of the term. H.R. Rep. No. 95-1403, at 40 (1978).
This passage, however, provides no support for the proposition that EEO complaints are not grievances within the scope of § 7114(a)(2)(A). First, although the passage indicates that § 7121 excludes some grievances from coverage under the NGP, the term grievance is not limited to matters covered under the NGP. See NTEU v. FLRA, 774 F.2d at 1188 ([t]he only plausible reading of this history is that § 7121 ensures that some grievances cannot be processed under [an NGP].). By recognizing that some grievances are excluded from the NGP, the passage makes clear that the term grievance should not be limited to matters covered by an NGP. Second, to the extent the passage supports a narrowed effect of the term grievance, it does so with respect only to the NGP in § 7121, not regarding the formal discussion right provided for by § 7114.
(3) The Purpose of the Statute's Provisions
The Respondent and the Ninth Circuit narrowly view the union's role in the workplace, relegating unions to the role of mere grievance-processors. See IRS, Fresno, 706 F.2d at 1024-25. This perspective ignores important policies and purposes behind the Statute's formal discussion right. First, contrary to the Respondent's argument, 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. NTEU v. FLRA, 774 F.2d at 1188. Here, the union has an undeniable representational interest in, among other things, disciplinary action taken against Mr. Jones even though Jones did not challenge the matter through the NGP. See AFGE, Local 1345 v. FLRA, 793 F.2d 1360 (D.C. Cir. 1986) (recognizing union's § 7114 interest in discipline afforded bargaining unit employees, even though the employees did not file a grievance or seek union representation concerning the discipline).
Second, the processing of an individual complaint through EEO procedures can have an effect on the entire bargaining unit, which the union represents. Luke, 54 FLRA at 731. As explained by the Tenth Circuit, 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. Dep't of Veterans Affairs, Denver, Colorado v. FLRA, 3 F.3d 1386, 1390 (1993).
Finally, contrary to the Respondent's suggestion, neither the Authority nor the courts have ruled that unions have an absolute right to attend discussions about EEO complaints. Both 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. NTEU v. FLRA, 774 F.2d at 1189 n.12; see U.S. Dep't of Justice (Ray Brook, NY), 29 FLRA 584, 590 (1987) (if there is a conflict between rights under section 7114(a)(2)(A) and those under other statutes, we 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). Here, the Respondent does not assert that such a direct conflict exists.
b. EEO Complaints, when Contractually Excluded from the NGP, Remain "Grievances" under the Statute
The Respondent's reliance on the CBA's exclusion of EEO complaints from the NGP is misplaced. As the Authority has previously held, [t]he statutory definition of a grievance is not dependent on the scope of a negotiated grievance procedure. Luke, 54 FLRA at 730. A particular subject matter may be a grievance for the purpose of a union's formal discussion right even though it cannot be processed through the contractual grievance procedure. As noted above, the language of § 7121(a) fully supports this analysis through the use of the phrase [ v57 p310 ] grievances which fall within [an NGP's] coverage. This wording necessarily means that there may be grievances that are outside the NGP's coverage. Any other interpretation would render the phrase meaningless. See United States v. Nordic Village, Inc., 503 U.S. 30, 36 (1992) ([A] statute must, if possible, be construed in such fashion that every word has some operative effect.) (citations omitted). In this case, EEO matters remain grievances for the purpose of § 7114(a)(2)(A) they just cannot be processed through the NGP.
Additionally, there is no support for the Respondent's assertion that the exclusion of EEO disputes from the NGP equates to a waiver of the Union's interest in such matters. Given the availability of the federally subsidized EEO statutory procedure, the Union might have agreed to exclude such matters from the NGP in order to avoid the expenditure of resources required to process an EEO grievance to arbitration. A union might well be willing to agree to exclude such matters from the NGP in reliance on its § 7114(a)(2)(A) right to attend formal discussions concerning EEO complaints.
B. The Presence of a Union Representative at the Mediation of an EEO Complaint Would Not Conflict with EEOC Regulations or the ADR Act
In Luke, the Authority specifically concluded that the presence of a union representative at the mediation of an EEO complaint was not inconsistent with either EEOC regulations or the ADR Act. 54 FLRA at 732-33. The Respondent's arguments do not undercut the Authority's previous determination. Specifically, the Respondent has pointed to no provision in the EEOC's regulations or the ADR Act that precludes union attendance at the mediation of an EEO complaint.
In addition, we reject the Respondent's argument that the Union is not a party to the dispute under the ADR Act and therefore not entitled to attend mediation sessions. Under that Act, party includes those entitled as of right to be admitted. 5 U.S.C. § 551(3) (incorporated by reference in 5 U.S.C. § 571(10)(A)). As discussed above, we have determined that this mediation session was a formal discussion under § 7114(a)(2)(A) of the Statute and therefore the Union has a statutory right to be admitted. Alternatively, even if the Union is not a party, the ADR Act contemplates the participation of nonparty participants in mediation sessions. 5 U.S.C. § 574(a)(1), (e). Although the term nonparty participants is not defined in the ADR Act, we see no reason why the term could not include the Union in this case.
The Respondent does, however, raise a number of hypothetical problems not present in this case which might arise in another ADR session involving EEO complaints. For example, the Respondent argues that a union might not agree to confidentiality. But this argument is mere conjecture because the Respondent did not offer the Union the opportunity to attend this ADR session on the condition of agreeing to confidentiality, and as such, the Union did not refuse to agree to confidentiality. Similarly, the Respondent suggests that union representation might chill candid discussions. However, there is no evidence of any such potential chilling effect in this case. Finally, the Respondent argues that some ADR discussions might implicate private information protected from disclosure under another statute. Again, there is no evidence that any such improper disclosure would have occurred here had a union representative attended the discussion. Such 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) (internal quotations omitted); see also FAA, Renton, Wash., 51 FLRA 986, 992 n.8 (1996) (leaving certain questions unanswered and noting that these issues could be resolved when an appropriate case is presented).
Pursuant to § 2423.41(c) of the Authority's Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, Department of the Air Force, 436th Airlift Wing, Dover Air Force Base, Dover, Delaware shall:
1. Cease and desist from:
a. Failing or refusing to provide the American Federation of Government Employees, Local 1709, adv