File 2: Opinion of Chairman Cabaniss

[ v57 p312 ]


Dissenting Opinion of Chairman Cabaniss:

      I respectfully dissent from my colleagues in this case, and with our original Luke decision, with which I reluctantly did not dissent. Rather, I would adopt the holding set forth in the Luke decision that was rendered by the United States Court of Appeals for the 9th Circuit on the same matter. There are, however, additional factors present in this case that also persuade me to find that the conduct at issue herein does not fall within the parameters of a formal discussion under 5 U.S.C. § 7114(a)(2)(A).

      Because the Union here is not the EEO complainant's representative, I would find that the presence at this EEO mediation session of union representatives pursuant to § 7114(a)(2)(A) violates Equal Employment Opportunity Commission (EEOC) regulations and guidance, to include Management Directive (MD) 110, and 5 U.S.C. § 574, which constitutes a part of the ADR Act. 29 C.F.R. § 1614.102(b)(2) of the EEOC's regulations require an agency to establish or make available an ADR program for both the pre-complaint and the formal complaint process. Chapter 3 of MD 110, which discusses ADR in the EEO process, specifically notes the confidentiality requirements of 5 U.S.C. § 574.

      The issue here involves whether a union, not acting as the representative of the EEO complainant, constitutes a party to the EEOC proceedings. In examining the ADR Act and the EEOC's regulations I find little support for the majority's position. For purposes of the ADR Act, 5 U.S.C. § 551(3) defines party [n1]  and notes that

"party" includes a person or agency named or admitted as a party, or properly seeking and entitled as of right to be admitted as a party, in an agency proceeding, and a person or agency admitted by an agency as a party for limited purposes[.]

Nothing in this definition arguably qualifies a union to be present as a party to these proceedings, unless the EEOC has admitted a union as a separate party unto itself for some purpose, limited or otherwise. As for the aspect of considering a union as a nonparty participant under 5 U.S.C. § 574(a)(1) and (e), i.e., requiring an additional disclosure consent from a nonparty participant if the dispute resolution communication was provided by [that] nonparty participant, and when a demand for disclosure is made the neutral shall . . . notify . . . any affected nonparty participants of the demand, I fail to see how these instances come close, if at all, to describing a union's attempted participation under § 7114(a)(2)(A) of our Statute. This attempt to now consider a union to be a nonparty only underscores 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.

      There also is nothing in 29 C.F.R. part 1614 that would lend support to the majority's position, and several points that argue against it. EEOC hearings are closed to the general public, and [a]ttendance at hearings will be limited to persons determined by the administrative judge to have direct knowledge relating to the complaint. Id., § 1614.109(e). I find it doubtful that a party could be barred from an EEO hearing, but then have a right to be present at the mediation of the complaint, which is equally if not more sensitive than what might take place at the hearing. These additional portions of part 1614 are also noted:

      a.     29 C.F.R. § 1614.603 notes that [a]ny settlement [agreement] reached shall be in writing and signed by both parties (emphasis added).

      b.     29 C.F.R. § 1614.405(b) notes that [a] decision issued under paragraph (a) of this section is final. . . . A party may request reconsideration . . . if the party demonstrates that . . . . (emphasis added), which indicates what a union, even one not representing the complainant, would be able to do if that union were to be considered a party.

      c.     29 C.F.R. § 1614.404(a), in discussing the EEOC's appellate procedures, notes that its Office of Federal Operations shall review the complaint file and all written statements and briefs from either party (emphasis added), which again indicates what a union not representing the complainant would be able to do if it were to be considered a party.

      d.     Finally (although other references to party or parties are present in the regulations), 29 C.F.R. §§ 1614.108(c)(3) and 1614.109(f)(3) discuss the possible consequences that can be levied against a party for failing to comply with requests for documents, records, comparative data, statistics, affidavits, or the attendance of witnesses, thereby implying that a party is some employee, group of employees, or agency that gets involved in such matters. Several of these citations are also reflected in MD 110 as well. Based upon those considerations, I would not find the Union here to be a party under 5 U.S.C. § 574 because it is not a party under the EEOC regulations governing this matter. [ v57 p313 ]

      In contradistinction to these regulations, which clearly would find it inconsistent for a union (whose only asserted right to be present is based on § 7114(a)(2)(A)) to be considered a party to the EEO process, the majority wishes to base a decision on the fact that, because the EEOC regulations don't expressly prohibit the Union from being present, there is nothing wrong with doing it. However, as 29 C.F.R. part 1614 is at odds with considering a union (that is not acting as the complainant's representative) to be a party to proceedings under that regulation, it is for the General Counsel/Union to justify that the Union is a party to such proceedings, not the other way around, and just saying that it should be otherwise, because the regulations don't expressly prohibit it, amounts to form over substance.

      Being considered a party is also not some contrivance designed just for the benefit of being able sit in on these mediation sessions. Being a party carries with it a whole range of requirements and entitlements. One of those entitlements is exposure and access to the Privacy Act-protected information set out in the EEOC's system(s) of records containing the complainant's file and record of proceedings. MD 110 notes that [s]uch information, including the fact that a particular person has sought counseling or filed a complaint, cannot be disclosed to a union unless the complaining party elects union representation or gives his/here written consent. MD 110, Chapter 3, paragraph II.A.6. Given this, I again conclude that a union (not representing the complainant) is not considered by the EEOC to be a party to the proceedings, and violates EEOC regulations and the ADR Act by being present at the EEO mediation sessions such as are involved in this case.

      Because this conduct conflicts with EEOC regulations and the ADR Act, as argued by the Agency and in support of its position that it had no obligation to abide by § 7114(a)(2)(A) in this particular circumstance, I would find, contrary to the majority, that the Respondent has argued a direct conflict between § 7114(a)(2)(A) and these regulations and statute. In such cases, even the NTEU v. FLRA decision [n2]  relied on by the majority noted:

Similarly, a direct conflict between the rights of an exclusive representative under § 7114(a)(2)(A) and the rights of an employee victim of discrimination should also presumably be resolved in favor of the latter. Cf. IRS, Fresno Service Center, 706 F.2d 1019.

774 F.2d at 1189, n.12 (emphasis in original). Therefore, because of the direct conflict between § 7114(a)(2)(A), and 29 C.F.R. part 1614 and the ADR Act, I would find that the Union here had no right under § 7114(a)(2)(A) to attend these mediation sessions.

      Consistent with the 9th Circuit's decision in Luke, I also would find that the discussion at issue here did not involve a grievance under § 7114(a)(2)(A). In that regard, and contrary to the majority opinion, that court's reading in Luke of § 7114(a)(2)(A) does not merely duplicate the rights provided in § 7121(b)(1)(C) and does not render that portion of § 7114(a)(2)(A) superfluous. Majority opinion at 12. Section 7121(b)(1)(C)(i) and (ii) assure an exclusive representative the right to always be present during the grievance proceeding. However, there is nothing in our precedent that supports a conclusion that the grievance proceeding under § 7121(b)(1)(C)(ii) is so broad that it renders meaningless § 7114(a)(2)(A), with or without consideration of the meaning ascribed to that statute by the Agency in this instance.

      Additionally, I also would not find the NTEU court decision to be dispositive of the matters at issue here. Even that court noted the following:

This case does not require us to decide what the union's rights would be where an employee opts to pursue a grievance outside of the negotiated grievance procedure because the union thinks that prosecution of this specific grievance is not in the best interest of the bargaining unit as a whole.

NTEU, 774 F.2d 1189, n.12. [n3]  Both the present case and Luke involve this same issue of a union turning away from individual EEO grievants, based upon the interests of the bargaining unit as a whole. Here, as in Luke, the union representing the bargaining unit expressly disclaimed its institutional interests, in protecting bargaining unit employees from discrimination, to a significant extent by excluding EEO issues from the coverage of the negotiated grievance procedure, thereby affirmatively precluding employees from being able to utilize that procedure (and the right of union representation in arbitration) to challenge allegedly discriminatory actions by the employer. I would, therefore, find this union disclaimer of interest to be a notable distinction in ascertaining whether a union's normal institutional [ v57 p314 ] interests were present, and thus whether a union's presence would be warranted by the statutory interest sought to be protected by § 7114(a)(2)(A). Based upon that distinction, I would not find as justified the extension of a union's § 7114(a)(2)(A) rights to these EEO mediation proceedings.

      I also do not find persuasive several of the precedent cited by the majority to support several arguments on this issue. In asserting that the Union had an undeniable representational interest in the disciplinary action taken against the employee here (even though the matter was not challenged through the negotiated grievance procedure), the majority cites to AFGE, Local 1345 v. FLRA, 793 F.2d 1360 (D.C. Cir. 1986), as recognizing union's § 7114 interest in discipline afforded bargaining unit employees, even when no grievance was filed or union representation sought. Majority opinion at 13. The case cited to dealt with information requests under § 7114, however, rather than formal discussions under § 7114(a)(2)(A), and the two rights/interests ar