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60 FLRA No. 155
FEDERAL AVIATION ADMINISTRATION
AIRWAYS FACILITIES DIVISION
NORTHWEST MOUNTAIN REGION
PROFESSIONAL AIRWAYS SYSTEMS
DECISION AND ORDER
April 11, 2005
Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members [n1]
I. Statement of the Case
This unfair labor practice case is before the Authority on exceptions to the attached decision of the Administrative Law Judge filed by the Respondent. The General Counsel also filed cross-exceptions and an opposition.
The complaint alleges that the Respondent violated § 7116(a)(1) and (8) of the Federal Service Labor-Management Relations Statute (the Statute) by holding formal discussions over a grievance with a member of the bargaining unit without providing the Union with notice of the discussion or the opportunity to attend as required by § 7114(a)(2)(A) of the Statute. [n2]
Upon consideration of the Judge's decision and the entire record, we adopt the Judge's findings, conclusions and recommended Order, as modified, for the reasons set forth below.
II. Background and Judge's Decision
A unit employee filed a formal Equal Employment Opportunity (EEO) complaint with the Equal Employment Opportunity Commission (EEOC). Judge's Decision at 2. Subsequently, the employee and her attorney met with two supervisors and two mediators, among others, to discuss resolving a portion of the formal complaint. Id. at 2, 3. A similar meeting took place a month later where the complaint was resolved in a settlement agreement. Id.
After resolving the EEO complaint, the employee notified a Union representative that she had resolved her complaint and that unit employees may "see some changes." Id. at 3. The employee did not inform the Union of the specifics of the settlement. Id.
Subsequently, the Union filed a charge, which was later amended, claiming that the Respondent had committed an unfair labor practice. The General Counsel, thereafter, issued a compliant alleging that the Respondent held formal discussions with a member of the bargaining unit without providing the Union with notice of the discussions or the opportunity to attend as required by § 7114(a)(2)(A) of the Statute. Judge's Decision at 1. After the complaint was issued, the General Counsel filed a motion for summary judgement to which the Respondent filed no opposition. Id. at 2. The Judge granted the motion and found for the General Counsel. The facts relied upon by the Judge in granting this motion were stipulated to by the parties.
The Judge determined that the mediation sessions were in fact "formal discussions concerning a grievance." Id. at 4, 5 (citing United States Dep't of the Air Force, Luke Air Force Base, Ariz., 58 FLRA 528 (2003) (Luke II) (Chairman Cabaniss dissenting); Dep't of the Air Force, 436th Airlift v. FLRA, 316 F.3d 280 (D.C. Cir. 2003) (436th Airlift), aff'g United States Dep't of the Air Force, 436th Airlift Wing, Dover Air Force Base, Dover, Del., 57 FLRA 304 (2001) (Dover) (Chairman Cabaniss dissenting)). As such, the Judge found under Luke II that the Union had the right to notification of, and to be present at, the mediation session. Judge's Decision at 6. Accordingly, as the Respondent did not notify the Union of the opportunity to attend the session, the Judge determined that the Respondent violated § 7114(a)(2)(A) of the Statute and thereby committed unfair labor practices in violation of § 7116(a)(1) and (8) of the Statute. Id. at 6, 7.
In fashioning a remedy, the Judge adopted in part and rejected in part the General Counsel's proposed order. The Judge determined that the order should not [ v60 p820 ] require specifically the Respondent to notify the Union of the opportunity to attend EEO meetings as an employee may request that the Union not attend. The Judge also excluded from the order a "reference to discussions regarding personnel policies or practices or other general conditions of employment . . . ." Id. at 6.
III. Respondent's Exceptions
The Respondent excepts to the Judge's finding that the meetings at issue concerned a "grievance" within the meaning of § 7114(a)(2)(A). The Respondent argues that Luke Air Force Base v. FLRA, 208 F.3d 221 (9th Cir. 1999) (Luke), cert. denied, 531 U.S. 819 (2000), is directly on point, and that the court there held that an EEO settlement "meeting was not a formal discussion because it did not concern a `grievance' as that term is used in 5 USC [§] 7114(a)(2)(A)." Exceptions at 1. As such, the Respondent contends that in the absence of a formal discussion the Union has no right of representation. Id.
The Respondent also argues that where an employee "elects to pursue an EEO complaint pursuant to a statutory appeals procedure under [§] 7121(d), the EEO complaint is no longer considered a `grievance' under the Statute for purposes of [§] 7114(a)(2)(A)." Id. at 2. Furthermore, the Respondent states that the legislative history "of [§] 7103(a)(9) contradicts the broad interpretation of `grievance' adopted by the [Authority] and strengthens our position that the term grievance is limited to complaints arising under the negotiated grievance procedure and not to claims pursued under a statutory procedure after a [§] 7121(d) election." Exceptions at 3. Additionally, the Respondent notes that the majority should adopt the Chairman's dissenting view in Dover, 57 FLRA at 312, finding that the definition of grievance does not include formal EEO complaints. Exceptions at 3-4. Finally, the Respondent argues that the actual settlement agreement was personal to the complainant and did not affect any personnel policy, practice or working condition for any other member of the bargaining unit. Id. at 2.
IV. General Counsel's Opposition and
In its opposition, the General Counsel (GC) argues, as relevant here, that the Respondent's reliance on Luke, 208 F.3d 221, is misplaced. In this respect, the GC states that Luke II is controlling and that under it the Authority has determined "`an EEOC complaint by a bargaining unit member against an employing agency comes within the meaning of the definition' of grievance under the Statute" and "thus mediation sessions concerning EEO complaints constitute formal discussions under § 7114(a)(2)(A) of the Statute." Opposition at 6 (citing Luke II, 58 FLRA at 553).
In its cross-exception, the GC argues that the Judge's recommended order is inconsistent with Authority precedent because it does not require the Respondent to provide the Union with notice and an opportunity to be present when discussing future EEO complaints. Opposition at 11 (citing Luke Air Force Base, Ariz., 54 FLRA 716 (1998) (Luke I); Luke II; Dover; and Marine Corps Logistics Base, Barstow, Cal., 52 FLRA 1039 (1997) (Marine Corps)). Moreover, the GC contends that the Judge also erred by "removing reference to the remainder of § 7114(a)(2)(A) since as he reasoned the discussions in this case involved only grievances, not personnel policies or practices or other general conditions of employment." Id. at 12. In support of its arguments, the GC notes that in similar cases the Authority has included "specific language referring to the agency's obligation to provide advance notice to the exclusive representative when formal discussions are to take place, including mediation of formal EEO complaints." Id. (citing Luke II, 58 FLRA at 536-37; Dover, 57 FLRA at 310-11; Luke I, 54 FLRA at 734-35; and Marine Corps, 52 FLRA at 1048-49) (emphasis in original).
Finally, the GC contends that "the ALJ removed portions of § 7114(a)(2)(A) from the Order and Notice to All Employees, which is standard language to be included when a formal discussion violation is found." Id. at 14.
V. Preliminary Matter
Section 2429.5 of the Authority's Regulations provides that "[t]he Authority will not consider . . . any issue, which was not presented in the proceedings before the . . . Administrative Law Judge[.]" 5 C.F.R. 2429.5. We find that § 2429.5 bars our consideration of the Respondent's claims that were not raised before the Judge. In this respect, the Respondent did not file an opposition to the General Counsel's motion for summary judgement and, in its answer to the complaint, denied that it had committed an unfair labor practice by merely citing Luke, 208 F.3d 221. As such, we will limit our consideration to the Respondent's arguments concerning Luke.
VI. Analysis and Conclusions
A. The Mediation Concerned a "Grievance"
In order for a union to have the right to representation under § 7114(a)(2)(A), there must be: (1) a discussion; [ v60 p821 ] (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 II, 58 FLRA at 531; Dover, 57 FLRA at 306; Luke I, 54 FLRA at 723; Gen. Servs. Admin., Region 9, 48 FLRA 1348, 1354 (1994). Here, the Respondent challenges the Judge's decision that the Ninth Circuit's decisions in Luke and IRS, Fresno Serv. Ctr. v. FLRA, 706 F.2d 1019 (9th Cir. 1983), should not be controlling in this case.
In Dover and Luke II, the Authority revisited and thoroughly reviewed the issue of whether EEO complaints pursued through a statutory appeals procedure are grievances under § 7114(a)(2)(A) and adhered to its view that "the scope of the term `grievance' encompasses such complaints, based on the express language of the Statute, the legislative history of the Statute, and the purpose of the Statute's provision for union representation under § 7114(a)(2)(A)." Luke II, 58 FLRA at 533; see Dover, 57 FLRA at 308-09. Moreover, in Luke II the Authority noted the decision in 436th Airlift, 316 F.3d 280, in which the D.C. Circuit rejected the Ninth Circuit's precedent and reaffirmed its decision in NTEU v. FLRA, 774 F.2d 1181 (D.C. Cir. 1985), that "grievance" encompasses complaints filed pursuant to a negotiated grievance procedure and those filed pursuant to alternative statutory procedures. Luke II, 58 FLRA at 533 (citing 436th Airlift, 316 F.3d at 285-86.)
Based on the above, the Judge correctly applied Luke II, and found that the Respondent violated the Statute by holding formal discussions over a grievance with a member of the bargaining unit without providing the Union with notice of the discussion or the opportunity to attend as required by § 7114(a)(2)(A). For the reasons set forth in those decisions, we respectfully disagree with the Ninth Circuit's determination that the formal discussion right under § 7114(a)(2)(A) does not apply to complaints filed under EEOC's statutory procedure. See Luke II, 58 FLRA at 533. Accordingly, we reaffirm that the term "grievance" under § 7114(a)(2)(A) includes formal EEO complaints and mediation sessions over those complaints and deny the Respondent's exception. See Luke II, 58 FLRA at 533-34.
B. We Modify the Judge's Notice and Order
The Authority has defined the broad objectives that an unfair labor practice remedy should be designed to serve. In this respect, the Authority has determined that "remedies for unfair labor practices under the Statute should, like those under the NLRA, be `designed to recreate the conditions and relationships that would have been had there been no unfair labor practice.'" United States Dep't of Justice, Bureau of Prisons, Safford, Ariz., 35 FLRA 431, 444-45 (1990) (BOP, Safford) (quoting Local 60, United Bhd. of Carpenters & Joiners v. NLRB, 365 U.S. 651, 657 (1961) (Harlan, J., concurring)); see also Dep't of Def. Dependents Schools, 54 FLRA 259, 269 (1998)). The Authority further stated that remedies should be designed to "restore, so far as possible, the status quo that would have obtained but for the wrongful act." BOP, Safford, 35 FLRA at 445 (quoting NLRB v. J.H. Rutter-Rex Mfg. Co., 396 U.S. 258, 265 (1969)). In addition, the Authority has noted that although the deterrence of future violative conduct is not in itself the principal objective of a remedial order, it "is also certainly a desirable effect[.]" Id.; see also F.E. Warren Air Force Base, Cheyenne, Wyo., 52 FLRA 149, 160 (1996).
Consistent with the foregoing, the Authority has routinely included in orders in similar cases a statement requiring an agency to acknowledge that it will provide an exclusive representative advance notice and the opportunity to be represented at grievances including "meetings to mediate settlement of formal EEO complaints[.]" Luke II, 58 FLRA at 536; Dover, 57 FLRA at 311; Luke I, 54 FLRA at 734. We believe it is appropriate to set forth this level of detail in this Order to ensure that the Respondent avoids committing a similar unfair labor practice in the future.
Additionally, and also consistent with the foregoing, we modify the Judge's Order to include a reference to discussions regarding not only grievances but also "personnel policies or practices or other general conditions of employment[.]" Judge's Decision at 6. In this regard, as we have routinely included this language in previous decisions with similar facts, we find that excluding such language may serve to only create confusion as to the Respondent's general obligations under the Statute. See Dover, 57 FLRA at 310.
Pursuant to section 2423.41 of our Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, the Federal Aviation Administration, Airways Facilities Division, Northwest Mountain Region, Renton, Washington shall:
1. Cease and desist from:
(a) Failing or refusing to provide the Professional Airways Systems Specialists, AFL-CIO, advance notice and the opportunity to be represented at formal discussions with bargaining unit employees concerning any grievance or any personnel policy or practices [ v60 p822 ] or other general conditions of employment, including discussions to mediate settlement of formal EEO complaints filed by bargaining unit employees.
(b) In any like or related manner, interfering with, restraining, or coercing employees in the exercise of rights assured to them by the Statute.
2. Take the following affirmative actions in order to effectuate the purposes of the Statute:
(a) Provide the Professional Airways Systems Specialists, AFL-CIO, advance notice and the opportunity to be represented at formal discussions with bargaining unit employees including mediation of formal Equal Employment Opportunity complaints.
(b) Post at the Spokane Systems Support Center, where employees in the bargaining unit are located, copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the Spokane Systems Support Center Supervisor, and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to ensure that these Notices are not altered, defaced, or covered by any other material.
(c) Pursuant to § 2423.41(e) of the Authority's Regulations, notify the Regional Director, San Francisco Regional Office, Federal Labor Relations Authority, 901 Market Street, Suite 220, San Francisco, California 94103-1791, in writing, within 30 days of this Order, as to what steps have been taken to comply.
NOTICE TO ALL EMPLOYEES
POSTED BY ORDER OF THE
FEDERAL LABOR RELATIONS AUTHORITY
The Federal Labor Relations Authority has found that the Federal Aviation Administration, Airways Facilities Division, Northwest Mountain Region, Renton, Washington, violated the Federal Service Labor-Management Relations Statute and has ordered us to post and abide by this notice.
WE HEREBY NOTIFY EMPLOYEES THAT:
WE WILL NOT fail or refuse to provide the employees' exclusive representative, the Professional Airways Systems Specialists, AFL-CIO, advance notice and the opportunity to be represented at formal discussions with bargaining unit employees concerning any grievance or any personnel policy or practices or other general conditions of employment, including meetings to mediate settlement of formal Equal Employment Opportunity complaints filed by bargaining unit employees.
WE WILL NOT, in any like or related manner, interfere with, restrain, or coerce our employees in the exercise of the rights assured by the Federal Service Labor-Management Relations Statute.
WE WILL provide the Professional Airways Systems Specialists, AFL-CIO, advance notice and the opportunity to be represented at formal discussions with bargaining unit employees including mediation of formal Equal Employment Opportunity complaints.
This Notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material.
If employees have any questions concerning this Notice or compliance with any of its provisions, they may communicate directly with the Regional Director, San Francisco Regional Office, Federal Labor Relations Authority, 901 Market Street, Suite 220, San Francisco, California 94103-1791 and whose phone number is: (415) 356-5000.
Footnote # 1 for 60 FLRA No. 155 - Authority's Decision
Footnote # 2 for 60 FLRA No. 155 - Authority's Decision
Section 7114(a)(2)(A) states that an exclusive representative of an appropriate unit in an agency shall be given the opportunity to be represented at "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."