Luke Air Force Base, Arizona v. FLRA, 208 F.3d 221 (9th Cir. 1999)(table), cert. denied, 121 S.Ct. 60 (2000)


Nos. 98-71173 & 98-71347

IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

_______________________________

LUKE AIR FORCE BASE, ARIZONA,
              Petitioner/Cross-Respondent
      v.

FEDERAL LABOR RELATIONS AUTHORITY,
              Respondent/Cross-Petitioner

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1547,
              Intervenor
_______________________________


ON PETITION FOR REVIEW AND CROSS-APPLICATION
FOR ENFORCEMENT OF A DECISION AND ORDER OF
THE FEDERAL LABOR RELATIONS AUTHORITY



BRIEF FOR THE FEDERAL LABOR RELATIONS AUTHORITY


            DAVID M. SMITH
              Solicitor

            WILLIAM R. TOBEY
              Deputy Solicitor

            JAMES F. BLANDFORD
              Attorney

            Federal Labor Relations Authority
            607 14th Street, N.W.
            Washington, D.C.  20424
            (202) 482-6620




TABLE OF CONTENTS

STATEMENT OF JURISDICTION  1

STATEMENT OF THE ISSUE  2

STATEMENT OF THE CASE  2

STATEMENT OF THE FACTS  3

I.  Background  3

II.  Proceedings before the Authority  4

A.  The ALJ's Decision  4

B.  The Authority's Decision and Order  6

STANDARD OF REVIEW  9

SUMMARY OF ARGUMENT  10

ARGUMENT  12

THE AUTHORITY PROPERLY DETERMINED THAT A
MEETING BETWEEN REPRESENTATIVES OF LUKE AFB
AND A BARGAINING UNIT EMPLOYEE, TO DISCUSS
A FORMAL DISCRIMINATION COMPLAINT,  CONSTITUTED
A FORMAL DISCUSSION CONCERNING A GRIEVANCE
PURSUANT TO SECTION 7114(a)(2)(A) OF THE STATUTE  12

A.  The Authority Properly Held That the Term "Grievance"
    as Used in Section 7114(a)(2)(A) Includes a Formal
    EEO Complaint  13

1.  The Authority's interpretation is supported by the
    text of the Statute   13

2.  The Authority's interpretation is consistent with
    the Statute's legislative history   17

3.  The Authority's interpretation is consistent with the
    purpose of Section 7114(a)(2)(A)  19

B.  The Authority Properly Held That Union Attendance at the
    January 19 Meeting Was Not Prohibited by EEOC
    Regulations or the Administrative Disputes Resolution Act  21

1.  EEOC Regulations  21

2.  The ADR Act  23

C.  The Authority's Decision Is Consistent with
    Applicable Judicial Precedent  23

1.  The holding in IRS, Fresno is limited to meetings
    concerning the informal precomplaint EEO process  23

2.  In all relevant respects, this case is indistinguishable
    from Veterans Affairs, Long Beach  27

CONCLUSION  30

CERTIFICATION PURSUANT TO FRAP RULE 32 AND CIRCUIT
RULE 32 (e) (4), FORM OF BRIEF  31



ADDENDUM

Relevant portions of the Federal Service Labor-Management
  Relations Statute, 5 U.S.C. §§ 7101-7135 (1994 & Supp. III
  1997) and pertinent regulations  A-1



TABLE OF AUTHORITIES

FEDERAL CASES

Am. Fed'n of Gov't Employees, Local 2343 v. FLRA, 144 F.3d 85
  (D.C. Cir. 1998)   9

Am. Fed'n of Gov't Employees v. FLRA, 775 F.2d 1022
  (9th Cir. 1985)   9

Bureau of Alcohol, Tobacco & Firearms v. FLRA, 464 U.S. 89
  (1983)   9

Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc.,
  467 U.S. 837 (1984)   9, 10, 21

Dep't of Veterans Affairs, Denver, Colo. v. FLRA,
  3 F.3d 1386 (10th Cir. 1993)   15, 25

Dep't of Veterans Affairs Med. Ctr., Long Beach, Cal. v. FLRA,
  16 F.3d 1526 (9th Cir. 1994)  passim

Detroit Edison Co. v. NLRB, 440 U.S. 301 (1979)   29

Export Group v. Reef Indus., Inc., 54 F.3d 1466
   (9th Cir. 1995)   26, 27

Fort Stewart Sch. v. FLRA, 495 U.S. 641 (1990)   10

Internal Revenue Service, Fresno Service Center v. FLRA,
  706 F.2d 1019 (9th Cir. 1983)   passim

Matter of Howard, 972 F.2d 639 (5th Cir 1992)   27

NLRB v. A-Plus Roofing, Inc., 39 F.3d 1410
  (9th Cir. 1994)   16

National Treasury Emp. Union v. FLRA, 774 F.2d 1181
  (D.C. Cir. 1985)   passim

In Re Osborne, 76 F.3d 306 (9th Cir. 1996)   29

Overseas Educ. Ass'n, Inc. v. FLRA, 858 F.2d 769 (D.C. Cir. 1988)   9

Power v. FLRA, 146 F.3d 995 (D.C. Cir. 1998)   9

Shannon v. United States, 512 U.S. 573 (1994)   18

U.S. Immigration and Naturalization Serv. v. FLRA, 4 F.3d 268
  (4th Cir. 1993)   22

Wright v. Universal Maritime Serv. Corp., 119 S. Ct. 391 (1998)   29

In Re Yochum, 89 F.3d 661 (9th Cir. 1996)   14



DECISIONS OF THE FEDERAL LABOR RELATIONS AUTHORITY

General Serv. Admin., Region 9 and Am. Fed'n of Gov't Employees,
  Council 236, 48 FLRA 1348 (1994)   6

Marine Corps Logistics Base, Barstow, California,
  52 FLRA 1039 (1997)   7, 24, 25

U.S. Dep't of Justice, Bureau of Prisons, Fed. Correctional Inst.
  (Ray Brook, New York), 29 FLRA 584 (1987)   19, 20, 23

United States Immigration and Naturalization Serv.,
  United States Border Patrol, El Paso, Tex., 47 FLRA 170
  (1993)   20



FEDERAL STATUTES

Federal Service Labor-Management Relations Statute,
  5 U.S.C. §§ 7101-7135 (1994 & Supp. III 1997)  1
  5 U.S.C. § 7103 (a) (9)  10, 14, 15, 18
  5 U.S.C. § 7105 (a) (2) (G)  1
  5 U.S.C. § 7114 (a) (2) (A)  passim
  5 U.S.C. § 7116 (a) (1)  2, 4, 5, 6, 8
  5 U.S.C. § 7116 (a) (8)  2, 4, 5, 6, 8
  5 U.S.C. § 7118  2
  5 U.S.C. § 7121  11, 15, 16, 17, 18
  5 U.S.C. § 7121 (a)  16
  5 U.S.C. § 7121 (c)  18
  5 U.S.C. § 7121 (d)  passim
  5 U.S.C. § 7121 (e)  11, 15, 16, 17, 28
  5 U.S.C. § 7123 (a)  1, 2
  5 U.S.C. § 7123 (b)  1
  5 U.S.C. § 7123 (c)  9
  5 U.S.C. § 571  5, 8
  5 U.S.C. § 706 (2) (A)  9

CODE OF FEDERAL REGULATIONS

  5 C.F.R. Part 1201  22
  29 C.F.R. § 1614  5, 7
  29 C.F.R. § 1614.105  24
  29 C.F.R. § 1614.213 (a) (1982)  24
  29 C.F.R. § 1614.301 (b)  21

LEGISLATIVE HISTORY

H.R. Rep. No. 95-1403, 95th Cong., 2d Sess. 40 (1978)  17





IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

Nos. 98-71173 & 98-71347

_______________________________

LUKE AIR FORCE BASE, ARIZONA,
  Petitioner/Cross-Respondent

v.

FEDERAL LABOR RELATIONS AUTHORITY,
              Respondent/Cross-Petitioner

and

AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, LOCAL 1547,
                  Intervenor
_______________________________



ON PETITION FOR REVIEW AND CROSS-APPLICATION
 FOR ENFORCEMENT  OF A DECISION AND ORDER
 OF THE  FEDERAL LABOR RELATIONS AUTHORITY



BRIEF FOR THE FEDERAL LABOR RELATIONS AUTHORITY



STATEMENT OF JURISDICTION

  The final decision and order under review in this case issued by the Federal
  Labor Relations Authority ("FLRA" or "Authority") is published at 54 FLRA
  (No. 75) 716 (August 13, 1998).  The Authority exercised jurisdiction over
  the case pursuant to section 7105(a)(2)(G) of the Federal Service Labor-
  Management Relations Statute, 5 U.S.C. §§ 7101-7135 (1994 & Supp. III 1997)
  (Statute).[1]
  This Court has jurisdiction to review and enforce the Authority's final
  decisions and orders pursuant to section 7123(a) and (b) of the Statute.
  Petitioner/Cross Respondent, Luke Air Force Base, Arizona (Luke AFB) filed
  its petition for review within the 60-day time limit provided by section
  7123(a) of the Statute.

STATEMENT OF THE ISSUE

  Whether the Authority properly determined that a meeting between
  representatives of Luke AFB and a bargaining unit employee, to discuss a
  formal discrimination complaint, constituted a formal discussion concerning
  a grievance pursuant to section 7114(a)(2)(A) of the Statute.

STATEMENT OF THE CASE

  This case arose as an unfair labor practice (ULP) proceeding brought under
  section 7118 of the Statute.  The Authority adjudicated a ULP complaint
  based on a charge filed by the American Federation of Government Employees,
  Local 1547 ("Local 1547" or "the union") alleging that Luke AFB violated
  section 7116(a)(1) and (8) of the Statute by holding a formal discussion
  with a bargaining unit member without affording the union adequate notice
  and an opportunity to be represented.  An Authority Administrative Law Judge
  (ALJ) heard the case and issued a recommended order finding that Luke AFB
  violated the Statute as alleged.  On Luke AFB's exceptions, the Authority
  issued a final decision concluding that Luke AFB violated the Statute and
  ordering an appropriate remedy.
  Luke AFB now seeks review and the Authority seeks enforcement of the
  Authority's final order.  Local 1547 has intervened on the Authority's
  behalf.

STATEMENT OF THE FACTS

I.  Background
  The facts, set forth in detail in the ALJ's decision (Excerpts of Record
  (ER) 14-18), and the Authority's decision (ER 27-29)  are summarized here.
  Tillie Cano (Cano), a bargaining unit employee, had filed two formal Equal
  Employment Opportunity (EEO) complaints alleging that she had been
  retaliated against for having filed a previous EEO complaint against her
  former supervisor.  ER 14, 27.  Pursuant to Department of the Air Force
  policy, Luke AFB's commander referred the two complaints to the Department
  of Defense's Office of Complaint Investigations (OCI).  ER 15, 28.  An OCI
  investigator then scheduled a conference with Cano, who designated Paul King
  (King), president of Local 1547,  as her personal representative.  ER 16,
  28.  As explained by the OCI investigator, the purpose of the conference was
  principally to mediate a settlement between Cano and Luke AFB.  If the
  parties failed to settle the cases, the investigator would initiate a formal
  investigation.  ER 1-4.
  Cano and King met with the OCI investigator on January 18, 1995.[2]  ER 16,
  28.  Also attending this meeting were an attorney from the Air Force Judge
  Advocate General's office, who had been assigned to represent Luke AFB, and
  Cano's former supervisor.  ER 16, 28.  The parties failed to reach a
  settlement and Luke AFB's representatives left the meeting toward the end of
  the day.  The investigator then began taking Cano's statement.  King left
  before Cano completed her statement and before there was any discussion of
  the need for the parties to meet again.  Prior to adjourning for the day the
  investigator told Cano that they would meet again the following day, January
  19.  ER 16-17, 28.
  King was not notified of the January 19 meeting, and did not attend.  ER 17,
  28.  Luke AFB's chief EEO counselor was present at this meeting, and early
  in the meeting either she or the attorney from the Judge Advocate General's
  office presented Cano with a proposed settlement agreement.  The agreement
  then became the topic of the meeting.  ER 17, 28.  The chief EEO counselor
  was in and out of the meeting relaying Cano's position to the Judge Advocate
  General attorney and returning to present Luke AFB's position to the
  employee.   After some discussion in that manner, the agreement was
  modified, and the employee signed it.  ER 17-18, 28-29.
  In May, Local 1547 filed a ULP charge alleging that Luke AFB had violated
  the Statute by not providing it with notice and an opportunity to attend the
  January 19 meeting.[3]  ER 5. Upon the issuance of a complaint by the
  Authority's General Counsel, a hearing was held before an ALJ.  ER 14.
II.  Proceedings before the Authority
  A.    The ALJ's Decision
  The ALJ first found that Luke AFB conducted a meeting on January 19 with an
  employee that was a discussion, which was formal, between one or more
  representatives of Luke AFB and a bargaining unit employee concerning her
  formal EEO complaints.  ER 18-22. He also found that Luke AFB violated
  section 7116(a)(1) and (8) of the Statute by failing to provide Local 1547
  notice and an opportunity to be represented at the discussion, as required
  by section 7114(a)(2)(A).[4]  ER 22-23.  The ALJ found no merit to Luke
  AFB's argument that, based on this Court's decision in Internal Revenue
  Service, Fresno Service Center v. FLRA, 706 F.2d 1019 (9th Cir. 1983) (IRS,
  Fresno), Cano's EEO complaints were not "grievances" within the meaning of
  section 7114(a)(2)(A).  ER 20-21.
  The ALJ also rejected Luke AFB's argument that section 574 of the
  Administrative Dispute Resolution Act, 5 U.S.C. § 571 et seq., (1994 & Supp.
  III 1997) (ADR Act) precluded the union's attendance at the settlement
  discussions of the formal EEO complaints.  He found that "nothing in the
  [ADR Act] forbids Local 1547 from being present at the settlement
  discussions or when settlement was reached."  He similarly found that
  nothing in the regulations or directives of the Equal Employment Opportunity
  Commission (EEOC) forbade Local 1547 from being present at settlement
  discussions of formal EEO complaints.[5]   ER 23-24.
  Accordingly, the ALJ concluded that Luke AFB violated section 7116(a)(1) and
  (8) of the Statute.  As a remedy, he recommended an order directing Luke AFB
  to give Local 1547 advance notice and an opportunity to be represented at
  "formal discussions with bargaining unit employees concerning mediation or
  investigation of formal EEO complaints."   He also recommended that Luke AFB
  post a notice to all employees.  ER 24-25.  Luke AFB filed exceptions to the
  ALJ's recommended decision and order with the Authority.  ER 27.
  B.    The Authority's Decision and Order
  In agreement with the ALJ, the Authority concluded that the January 19
  mediation/investigation session concerning the formal EEO complaints was a
  "formal discussion" concerning a grievance within the meaning of section
  7114(a)(2)(A) of the Statute.  The Authority, therefore, concluded that Luke
  AFB violated section 7116(a)(1) and (8) of the Statute by failing to provide
  Local 1547 notice and an opportunity to be represented at that session.  ER
  45.
  Under well-established Authority precedent, a union's right to
  representation under section 7114(a)(2)(A) requires the existence of four
  elements.  Specifically, there must be:  (1) a discussion; (2) which is
  formal; (3) between one or more representatives of the agency and one or
  more unit employees or their representatives; (4) concerning any grievance
  or any personnel policy or practice or other general condition of
  employment.  See, e.g.,  General Serv. Admin., Region 9 and American Fed'n
  of Gov't Employees, Council 236, 48 FLRA 1348, 1354 (1994).  ER 34.
  According to the Authority, all four  elements were present in the instant
  case.  It was undisputed that Luke AFB engaged in a "discussion" with Cano
  about her EEO complaints.  ER 34-35.  Second, the Authority found that the
  discussion was formal within the meaning of section 7114(a)(2)(A).  ER
  35-41.  Third, Luke AFB conceded that the Attorney from the Judge Advocate
  General's office was its representative in the discussions.  ER 41.[6]
  The Authority also concluded that the formal EEO complaints filed by the
  employee constituted "grievances" within the meaning of section 7114(a)(2)
  (A).  Rejecting Luke AFB's assertion that under section 7114(a)(2)(A) a
  matter cannot be a "grievance" where the parties have excluded it from their
  negotiated grievance procedure (NGP), the Authority held that the broad
  statutory definition of a grievance is not dependent on the scope of an NGP.
  ER 41-43.
  Luke AFB's argument that Local 1547 had no right to be present at the
  "mediation" in this case because that mediation affected only the employee
  herself, not the bargaining unit as a whole, was also rejected by the
  Authority.   Citing Marine Corps Logistics Base, Barstow, California, 52
  FLRA 1039, 1045-46 (1997) (Barstow), the Authority reasoned that section
  7114(a)(2)(A) does not require that a "grievance" manifest some effect on
  other employees in the bargaining unit before it may become the subject of a
  formal discussion.[7]  ER 42.
  Further, the Authority held that the presence of a union representative at
  the January 19 mediation/investigation session of the EEO complaints would
  not conflict with EEOC's regulations or the ADR Act.  With respect to EEOC's
  regulations, the Authority noted that Luke AFB did not contend that 29
  C.F.R. Part 1614 and EEO MD 110 actually prohibit the presence of a union
  representative at the formal discussion of an employee's EEO complaint.  The
  Authority found that 29 C.F.R. Part 1614's silence on the right of a union
  to be present at a formal discussion of an EEO complaint does not imply that
  the union's presence is forbidden or that the regulation necessarily
  conflicts with the protections of the Statute.  ER 43.
  The Authority also rejected Luke AFB's reliance on dictum by the D.C.
  Circuit in National Treasury Employees Union v. FLRA,  774 F.2d 1181, 1189
  (D.C. Cir. 1985) (NTEU).  In that regard, the court had suggested that any
  conflict between the rights of identifiable victims of discrimination and
  the interests of the bargaining unit must be resolved in favor of the
  former.  Noting that Luke AFB identified no conflict between the rights of
  the employee in this case and those of Local 1547 or the rest of the
  bargaining unit, the  Authority specifically pointed out that Cano not only
  did not object to King's presence at the settlement discussions, but that
  she requested his presence.  ER 44.
  Further, there was no conflict between the ADR Act and the Statute according
  to the Authority.  The Authority found that, to the extent section 574 of
  the ADR Act, 5 U.S.C. § 574, applied in the circumstances of this case, it
  would require only that the union representative be bound by its
  nondisclosure provisions.  The mere presence of a union representative at a
  dispute resolution proceeding where all the elements of section 7114(a)(2)
  (A) were met would not, the Authority concluded, in and of itself conflict
  with these provisions of the ADR Act.  ER 44.
  Based on the foregoing, the Authority concluded that Luke AFB violated
  section 7116(a)(1) and (8) of the Statute by failing to provide Local 1547
  notice and an opportunity to be represented at the January 19
  mediation/investigation session.  Luke AFB was ordered to cease and desist
  from such conduct and to post an appropriate notice to all employees.  ER
  45-46.
STANDARD OF REVIEW
  The standard of review of Authority decisions is "narrow."  American Fed'n
  of Gov't Employees, Local 2343 v. FLRA, 144 F.3d 85, 88 (D.C. Cir. 1998).
  Authority action shall be set aside only if "arbitrary, capricious, an abuse
  of discretion, or otherwise not in accordance with law."  5 U.S.C. §
  7123(c), incorporating 5 U.S.C. § 706(2)(A); Department of Veterans Affairs
  Med. Ctr., Long Beach, Cal. v. FLRA, 16 F.3d 1526, 1529 (9th Cir. 1994)
  (Veterans Affairs, Long Beach); Overseas Educ. Ass'n, Inc. v. FLRA, 858 F.2d
  769, 771-72 (D.C. Cir. 1988).  Under this standard, unless it appears from
  the Statute or its legislative history that the Authority's construction of
  its enabling act is not one that Congress would have sanctioned, the
  Authority's construction should be upheld.  See Chevron, U.S.A., Inc. v.
  Natural Resources Defense Council, Inc., 467 U.S. 837, 844 (1984) (Chevron).
  A court should defer to the Authority's construction as long as it is
  "reasoned and supportable."  American Fed'n of Gov't Employees v. FLRA, 775
  F.2d 1022, 1025 (9th Cir. 1985) (AFGE v. FLRA) .
  Factual findings of the Authority that are supported by substantial evidence
  on the record as a whole are conclusive.  See 5 U.S.C. § 7123(c); AFGE v.
  FLRA, 775 F.2d at 1025; Power v. FLRA, 146 F.3d 995, 1000 (D.C. Cir. 1998)
  (Power).  The Authority is entitled to have reasonable inferences it draws
  from its findings of fact not be displaced, even if the court might have
  reached a different view had the matter been before it de novo.  Power, 146
  F.3d at 1001.
  Finally, as the Supreme Court has stated, the Authority is entitled to
  "considerable deference" when it exercises its "special function of applying
  the general provisions of the [Statute] to the complexities of federal labor
  relations."  Bureau of Alcohol, Tobacco & Firearms v. FLRA, 464 U.S. 89, 97
  (1983).  Among the "complexities of Federal labor relations" are the
  overlapping systems of employee redress such as those at issue in this case.
  Luke AFB attempts (Petitioner's Brief (Br.) 20-21) to diminish the deference
  owed the Authority by characterizing the case as one principally about the
  interpretation of regulations promulgated by the EEOC.   However, Luke AFB's
  characterization of the case is incorrect.  The case turns not on the
  interpretation of EEOC's regulations, but on the scope of the term
  "grievance" as defined in section 7103(a)(9) of the Statute and applied in
  section 7114(a)(2)(A).  As established below, the Authority's interpretation
  of the Statute is unambiguously supported by the Statute's text.  To the
  extent there exists any ambiguity with respect to Congress' intent, the
  Authority's interpretation is due deference.  See Fort Stewart Sch. v. FLRA,
  495 U.S. 641, 645 (1990) (citing Chevron, 467 U.S. at 842-43).

SUMMARY OF ARGUMENT

  The Authority properly held that discussions between representatives of Luke
  AFB and a bargaining unit employee about her formal EEO complaints concerned
  a "grievance" as that term is used in section 7114(a)(2)(A) of the Statute.
  The Authority's determination that the meeting concerned a grievance is
  supported by the plain language of the Statute, its legislative history, and
  Congress's purpose in enacting the Statute.  In addition, the Authority's
  decision does not conflict with either the regulations of the EEOC or the
  ADR Act.  Finally, the Authority's decision is consistent with this Court's
  precedent.
  1.  As recognized by this Court, the Statute's definition of the term
  "grievance" is extremely broad, encompassing any employment-related
  complaint, regardless of the forum in which the complaint may be pursued.  5
  U.S.C. § 7103(a)(9).  The term, therefore, includes not only matters raised
  through the NGP, but also matters raised in statutory appeals systems like
  the EEO procedure at issue here.  Other sections of the Statute also make it
  clear that "grievances" are not limited to complaints pursued through the
  NGP.   Section 7114(a)(2)(A), in turn, specifically encompasses "any"
  grievance, indicating that Congress intended this section to apply to the
  full range of grievances as defined in the Statute.  In addition, section
  7121(d) and (e) provide that "aggrieved" employees, i.e., employees with a
  grievance, may raise certain issues under a statutory procedure or under the
  NGP.
  In addition, the relevant legislative history emphasizes the "virtually all-
  inclusive" character of the Statute's definition of "grievance."  Although
  the legislative history references section 7121's effect of limiting the
  scope of the NGP, nothing can be construed as limiting the otherwise broad
  statutory definition of the term "grievance."
  Further, union attendance at meetings concerning grievances, including those
  pursued through statutory appeals procedures, furthers the purpose behind
  section 7114(a)(2)(A).  That purpose is to protect interests of the
  bargaining unit as a whole, and the union's institutional interests in
  matters concerning conditions of employment.
  2.  Contrary to the contentions of Luke AFB, union attendance at the
  settlement conference is not inconsistent with either the controlling
  regulations of the EEOC or the ADR Act.  Luke AFB points to no provision in
  either authority that would prohibit the union from attending the meeting .
  To the extent the ADR Act imposes specific confidentiality requirements,
  those  requirements would presumably apply to the union as a participant in
  the proceeding, but would not bar the union's presence at the conference.
  3.  Finally, the Authority's decision is consistent with the relevant
  judicial precedent, including this Court's decision in IRS, Fresno.  In IRS,
  Fresno,  a conference at the precomplaint, informal stage of the EEO process
  was found not to be a formal discussion concerning a grievance under section
  7114(a)(2)(A).  As recognized by the Authority and other courts of appeals
  that have considered the issue, the holding in IRS, Fresno was expressly
  limited to precomplaint proceedings.  It is therefore distinguishable and
  not binding precedent in a case like this, which concerns a formal EEO
  complaint.  To the extent the IRS, Fresno Court discussed broader issues,
  those comments constitute dicta.
  This Court's decision in Veterans Affairs, Long Beach confirms the limited
  scope of IRS, Fresno.  In Veterans Affairs, Long Beach, this Court held that
  a discussion involving a bargaining unit employee's appeal to the MSPB
  concerned a "grievance" within the scope of section 7114(a)(2)(A) because
  "grievance" as used in that section includes statutory appeals.  Because
  there are no relevant distinctions between the statutory MSPB appeal at
  issue in  Veterans Affairs, Long Beach and the formal statutory EEO
  complaint involved in the instant case, the Court should uphold the
  Authority's conclusion that the discussion involving the complaint in this
  case concerned a grievance within the meaning of section 7114(a)(2)(A).

ARGUMENT

THE AUTHORITY PROPERLY DETERMINED THAT A MEETING BETWEEN REPRESENTATIVES OF LUKE
AFB AND A BARGAINING UNIT EMPLOYEE, TO DISCUSS A FORMAL DISCRIMINATION
COMPLAINT,  CONSTITUTED A FORMAL DISCUSSION CONCERNING A GRIEVANCE PURSUANT TO
SECTION 7114(a)(2)(A) OF THE STATUTE

  The pivotal issue in this case is whether it was reasonable for the
  Authority to conclude that the meeting held with Cano to settle her formal
  EEO complaints concerned a "grievance" within the meaning of section 7114(a)
  (2)(A) of the Statute.  Section 7114(a)(2)(A) provides that a union must 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[.]
  Luke AFB does not deny that, with respect to this meeting, all but one of
  the elements of section 7114(a)(2)(A) were met.  Further, it is undisputed
  that Luke AFB failed to provide Local 1547 with notice and an opportunity to
  attend the January 19 meeting concerning Cano's formal EEO complaints.
  Therefore, Luke AFB contends here only that the meeting did not concern a
  "grievance" within the meaning of section 7114(a)(2)(A).  See Br. 22.[8]
  However, as we demonstrate below, the Authority's contrary determination,
  that the meeting did concern a grievance, is supported by the language,
  legislative history, and purposes of the Statute.  The Authority's decision
  should therefore be upheld.
  A.  The Authority Properly Held That the Term "Grievance" as Used in Section
  7114(a)(2)(A) Includes a Formal EEO Complaint
    1.  The Authority's interpretation is supported by the text 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 section 7114(a)(2)(A), the first place to look is the
  Statute's express definition of "grievance."   See In Re Yochum, 89 F.3d
  661, 666 (9th Cir. 1996) ("in statutes that contain statutory definition
  sections, it is commonly understood that such definitions establish meaning
  wherever the terms appear in the same Act").  Section 7103 is the Statute's
  definition section; section 7103(a)(9) provides that:
    '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[.]
Thus, the Statute defines "grievance" generically as any employment-related
complaint.  The breadth of this definition is emphasized by the fact that it
does not refer to any specific avenue of redress through which the complaint
constituting the "grievance" may be pursued.  This Court has specifically
commented on the "extremely" broad reach of the statutory definition.  Veterans
Affairs, Long Beach, 16 F.3d at 1533.
  Cano's contention that she was the victim of illegal discrimination at the
  hands of her employing agency was undeniably a "complaint by [an] employee
  concerning [a] matter relating to [her employment]," i.e. a "grievance"
  under the Statute's definition.  Nonetheless, taking a position opposed to
  the Statute's plain language, Luke AFB mistakenly contends (Br. 26) that
  Cano's complaint should be excepted from the Statute's "extremely broad[]"
  definition of "grievance,"  because it was not processed through the
  parties' NGP.  Luke AFB's claim is devoid of textual support.
  As the Authority properly found (ER 41), the statutory definition of a
  "grievance" is broader than the scope of an NGP, and includes statutory
  appeals.  Accord NTEU, 774 F.2d at 1188 (language and structure of the
  Statute indicate that statutory term "grievance" is not limited to disputes
  governed by an NGP); see also Department of Veterans Affairs, Denver, Colo.
  v. FLRA, 3 F.3d 1386, 1391 (10th Cir. 1993) (Veterans Affairs, Denver)
  (limiting "grievance" as used in section 7114(a)(2)(A) to the NGP is "too
  narrow" a reading of the Statute).  There are a number of bases to support
  this conclusion.  First, as noted above, the definition of grievance found
  at section 7103(a)(9) of the Statute refers only to a person's employment-
  related complaint, not to any specific process for resolving that complaint.
  Similarly, section 7114(a)(2)(A) does not allude to any particular process
  or processes through which grievances may be pursued.  Rather, section
  7114(a)(2)(A) provides for union attendance at meetings "concerning any
  grievance."  5 U.S.C. § 7114(a)(2)(A) (emphasis added).  The use of the
  modifier "any" indicates Congress' intention that the scope of the term
  "grievance" in this section should extend to the entire range of the
  statutory definition.
  Second, the various provisions of section 7121 of the Statute make it clear
  that "grievances" may be pursued in a variety of ways, including but not
  limited to the NGP.  Of particular relevance here are subsections (d) and
  (e), which provide that "aggrieved employees" affected by illegal
  discrimination within the jurisdiction of the EEOC, or subject to conduct
  or performance-based adverse actions within the jurisdiction of the MSPB,
  may raise these matters under either a statutory procedure or an NGP but
  not both.  5 U.S.C. § 7121(d), (e).  As the D.C. Circuit held:
[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, 774 F.2d at 1187.
  Other provisions of section 7121 also indicate that the term "grievance"
  encompasses complaints filed under procedures other than the NGP.  For
  example, section 7121(a) provides that any collective bargaining agreement
  shall include procedures for the "settlement of grievances" and that "[e]
  xcept as provided in subsections (d) [and (e)] of this section, [these]
  procedures shall be the exclusive administrative procedures for resolving
  grievances which fall within its coverage."  The reference to section 7121
  (d) and (e) thus indicates that "the statutory procedures referred to in
  [those subsections] are also procedures for resolving grievances."  NTEU,
  774 F.2d at 1187-88.
  Finally, section 7121(a)'s use of the phrase "grievances which fall within
  its coverage" necessarily implies that there may be "grievances" which are
  outside the NGP's coverage.  Any other interpretation would render the
  phrase meaningless.  See NLRB v. A-Plus Roofing, Inc., 39 F.3d 1410, 1415
  (9th Cir. 1994) (citations omitted) (In construing a statute, court is
  "obliged to give effect, if possible, to every word Congress used.").
  Accordingly, contrary to Luke AFB's suggestions, section 7121 neither
  defines nor limits the scope of the term "grievance."  Rather, section 7121
  supplies incontrovertible textual support for an understanding of the term
  consistent with the broad reading given it by the Authority and the D.C. and
  Tenth Circuits.[9]
  In sum, the Statute provides a broad definition of "grievance" that includes
  not only matters processed through NGPs, but statutory appeals as well.  See
  Veterans Affairs, Long Beach, 16 F.3d at 1533 (the Authority's broad reading
  of the term grievance as encompassing statutory appeals is "in conformance
  with the language of the Statute").  Because the statutory definition
  controls the term's use in section 7114(a)(2)(A), a meeting concerning a
  statutory appeal, such as the formal EEO complaint in this case, constitutes
  a formal discussion within the scope of that section.
2.  The Authority's interpretation is consistent with the Statute's legislative
history
  The Statute's legislative history supports the Authority's adherence to the
  plain meaning of the Statute's definition of "grievance."  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).
  According to Luke AFB (Br. 26), this quotation "unmistakably states that
  'grievance' is to be given a limited interpretation and refers to section
  7121 of the Labor Statute to determine what matters are outside of the
  definition of the term."  However, contrary to Luke AFB's contentions, the
  quotation states nothing of the kind.
  To begin with, if Congress had intended a limited definition of "grievance,"
  it would not have defined grievance in the "virtually all-inclusive" manner
  it did.  Thus, Luke AFB's reading of the legislative history contradicts the
  extremely broad definition found in the Statute.  A court should not give
  effect to a "snippet" of legislative history where to do so would require
  abandoning the text of the statute as a guide in the interpretive process.
  See Shannon v. United States, 512 U.S. 573, 583 (1994).
  But in any event this "snippet" of legislative history confirms rather than
  contradicts the Statute's broad definition.   First, the quoted passage from
  the House Report  stresses what is apparent from even a cursory reading of
  section 7103(a)(9)--that the statutory definition of grievance is "virtually
  all-inclusive."  Second, the House Report makes clear that the terms of
  section 7121 exclude certain grievances from being processed under an NGP.
  By recognizing that some grievances are excluded from the NGP, the passage
  establishes that the term "grievance" is broader than matters covered by an
  NGP.  The effect of this phrase is, at most, to limit the coverage of an
  NGP, not to limit the Statute's "extremely broad" definition of grievance.
  See NTEU, 774 F.2d at 1188 (passage indicates only that the scope of the
  term "grievance" in sections 7103(a)(9) and 7114(a)(2)(A) is broader than
  the "effect"of the term under section 7121).
  Lastly, whatever the House Report's limiting effect, it does not reach
  formal EEO complaints such as here involved.  The passage indicates that the
  "net" effect of the term is limited by matters excluded from the NGP by
  section 7121.  This cannot be construed to refer to EEO complaints because
  such complaints are not excluded from NGPs.  Rather, under section 7121(d)
  employees may choose to pursue claims of discrimination through the
  statutory procedure or the NGP.  Matters excluded from NGPs are found in
  section 7121(c) and include subjects such as retirement, life or health
  insurance, and the classification of a position which does not result in a
  reduction of pay.
  3.  The Authority's interpretation is consistent with the purpose of section
  7114(a)(2)(A)
  The purpose of section 7114(a)(2)(A) also supports the Authority's faithful
  application of the Statute's broad definition of "grievance" to the section.
  That purpose is to provide the union with an opportunity to safeguard its
  interests and the interests of all employees in the bargaining unit.  See
  U.S. Department of Justice, Bureau of Prisons, Fed. Correctional Inst. (Ray
  Brook, New York), 29 FLRA 584, 589 (1987) (FCI, Ray Brook).  Contrary to
  Luke AFB's arguments, these interests are present in a meeting concerning a
  formal EEO complaint filed by a bargaining unit member.  In the first place,
  the union has an interest in the fair treatment of unit members and any
  allegation of unfair treatment triggers that interest.  See NTEU, 774 F.2d
  at 1188.  Second, resolution of individual complaints may well have effects
  on other employees.  There may be a direct effect if a remedy for one
  employee will result in decreased opportunities for others,  e.g.,
  reassigning an aggrieved employee into a newly created position.  Id.  In
  addition, determinations with respect to what constitutes an unjust
  employment action in one case may affect the rights and expectations of
  other employees in similar circumstances.  Id.   As the D.C. Circuit notes,
  these effects are present whether the aggrieved employee pursues the matter
  through the NGP or through an alternative statutory procedure.[10]  Id.
  This is not to say that the union's interests are identical in a statutory
  appeal and in a matter pursued through the NGP where the union has the right
  of exclusive representation.  In this regard, Luke AFB grossly overstates
  the effect of the Authority's decision.  The Authority has not "engraft[ed]
  on the statutory proceedings the entire panoply of rules governing the
  negotiated grievance procedure[,]" nor has the Authority provided the union
  with "the same rights in the EEOC procedure as it does in the contractual
  grievance procedure."  (Br. 40 (internal quotes omitted)).  The Authority
  holds only that where all the elements of a formal discussion are met, the
  union has a right to attend a meeting regarding a bargaining unit employee's
  formal discrimination complaint.  The Authority has consistently recognized
  that "a union's institutional role with respect to statutory appeal rights
  is more restricted than its role in the negotiated grievance procedure."
  FCI, Ray Brook, 29 FLRA at 590.  As the Authority specifically noted in FCI,
  Ray Brook, consideration must be given to any conflict between union rights
  under section 7114(a)(2)(A) and rights of other parties, including the
  aggrieved employee, under alternative statutory procedures.  Id.; see also
  United States Immigration and Naturalization Serv., United States Border
  Patrol, El Paso, Tex., 47 FLRA 170, 184-187(1993) (deposition of bargaining
  unit employee in connection with MSPB appeal was a formal discussion which
  the union was entitled to attend, but pursuant to MSPB regulations, active
  participation in the deposition was prohibited).
  The preceding amply demonstrates that the Authority's interpretation of the
  term "grievance," as defined and used in the Statute, is consistent with the
  clear language of the Statute, its legislative history, and the
  congressional purposes behind its enactment.  Because Congress' intent is
  clear, the Authority's interpretation must be upheld.  See Chevron, 467 U.S.
  at 842-43.  However, to the extent any ambiguity exists, the Authority's
  interpretation of its organic statute is due deference and is to be affirmed
  if it constitutes a permissible construction of the Statute.  Id. at 843.
B.  The Authority Properly Held That Union Attendance at the January 19 Meeting
Was Not Prohibited by EEOC Regulations or the Administrative Disputes Resolution
Act
1.  EEOC regulations
  Luke AFB also argues (Br. 37) that the January 19 meeting was not a formal
  discussion within the meaning of section 7114(a)(2)(A) because the
  discrimination complaints at issue were filed pursuant to EEOC regulations
  and not the NGP.  As demonstrated above, the scope of the term "grievance"
  as used in section 7114(a)(2)(A) is not limited to complaints filed under
  the parties' NGP.  But further, nothing in the regulations of the EEOC
  prohibited the union's attendance at the January 19 meeting.
  Luke AFB cites no provision of the EEOC's regulations that prohibits union
  attendance at discussions concerning complaints.  The sole regulatory
  provision cited by Luke AFB is 29 C.F.R. § 1614.301(b).  That provision
  states only that where a person is not covered by a collective bargaining
  agreement which permits allegations of discrimination to be raised under the
  NGP, such allegations shall be processed under the EEOC's regulations.
  In short, Luke AFB has pointed to no substantive regulation that prohibits
  union attendance, or is otherwise inconsistent with section 7114(a)(2)(A) of
  the Statute.  Instead, Luke AFB is saddled with the far weaker argument that
  the EEOC's regulations do not explicitly provide for the presence of a union
  representative at discussions between the employing agency and a
  complainant.  Such regulatory silence is insufficient to extinguish the
  union's right to attend provided in the Statute.  See U.S. Immigration and
  Naturalization Serv. v. FLRA, 4 F.3d 268, 272-73 (4th Cir. 1993) (fact that
  MSPB regulations do not provide for official (paid) time for union
  representatives at its proceedings does not preclude such time where
  otherwise provided for in the Statute).[11]
  Further, this Court has found that the mere fact that a grievance is pursued
  through a statutory proceeding governed by the regulations of an independent
  adjudicatory body does not diminish rights otherwise established by the
  Statute.  The witness interviews at issue in Veterans Affairs, Long Beach
  were conducted as part of proceedings before the MSPB and presumably subject
  to the MSPB's regulations.  See 16 F.3d at 1533-34.  Like the regulations of
  the EEOC, those of the MSPB are silent with respect to the role of an
  exclusive representative.  See 5 C.F.R. Part 1201.[12]
  Finally, Luke AFB improperly criticizes (Br. 32) the Authority for failing
  to address those situations where there may be a direct conflict between the
  rights of the union and those of the aggrieved employee.  Neither before the
  Authority nor before the Court has Luke AFB alleged such a conflict in this
  case.  Moreover, as discussed above, the Authority has indicated that in the
  event such a case presents itself, the conflict will be considered in
  determining the applicability of section 7114(a)(2)(A).  FCI, Ray Brook, 29
  FLRA at 590.
2.  The ADR Act
  Luke AFB also suggests (Br. 29-30) that the union's presence at the January
  19 meeting was inconsistent with the confidentiality provisions of the ADR
  Act.  However, Luke AFB offers no specificity as to how this alleged
  conflict arises.  Luke AFB's vagueness aside, the Authority analyzed the ADR
  Act and properly noted that the Act's confidentiality provisions do not
  address who may attend proceedings subject to the Act, but rather address
  the protection of proceeding's confidentiality.  As the Authority stated (ER
  44), a union representative who was present at such a proceeding  would
  presumably be bound by the nondisclosure provisions of the ADR Act.[13]
C.  The Authority's Decision Is Consistent with Applicable Judicial Precedent
  1.  The holding in IRS, Fresno is limited to meetings concerning the
  informal precomplaint EEO process
  Luke AFB erroneously contends that this case is controlled by this Court's
  decision in IRS, Fresno, and that under that precedent, Cano's formal EEO
  complaints are not "grievances" under the Statute.  Contrary to Luke AFB's
  contentions, the Court in IRS, Fresno expressly limited its holding to
  discussions concerning informal precomplaint counseling sessions of the sort
  at issue in that case, but not at issue here.  IRS, Fresno, 706 F.2d at 1021
  ("We hold that the union representation rights guaranteed by 5 U.S.C. §
  7114(a)(2)(A) do not apply to the EEO precomplaint conciliation conference
  involved in this case." (Emphasis added)).  It is undisputed that the
  instant case involves a formal postcomplaint discussion.[14]
  The centerpiece of the court's holding in IRS, Fresno was the particular
  character of "informal" precomplaint EEO proceedings.  Under the governing
  regulations an employee who believes he or she has been discriminated
  against must consult with an EEO counselor who will informally investigate
  the matter, seek to resolve the matter on an "informal basis" and otherwise
  counsel the aggrieved employee.  IRS, Fresno, 706 F.2d at 1021 n. 2 (setting
  out 29 C.F.R. § 1613.213(a) (1982)).[15]  Further, the regulations require
  that the counselor not reveal the identity of the aggrieved employee until
  and unless the employee files a formal complaint.  Id.
  The Court relied upon both the confidentiality requirements and the
  explicitly "informal" nature of the precomplaint proceedings to find that
  union representation was not required at a "precomplaint conciliation
  conference."  Id. at 1023-24.  Neither of these policy considerations are
  present in this case.  First, the confidentiality considerations in a case
  where, as in the instant one, formal complaints have been filed are
  significantly diminished.  Most importantly, after a formal complaint is
  filed with the agency employer, the complainant's identity is revealed.
  Cf., IRS Fresno, 706 F.2d at 1019 (emphasizing significance of EEOC
  regulations prohibiting disclosure of aggrieved employee at precomplaint
  stage).  Second, although Luke AFB sometimes (e.g. Br. 18) suggests that the
  meetings in the instant case are informal mediation sessions, unlike the
  case in IRS, Fresno, the applicable regulations do not refer to meetings at
  the postcomplaint stage as "informal".  See IRS Fresno, 706 F.2d at 1023-24.
  And, as noted above, Luke AFB concedes that the meeting at issue here
  otherwise satisfied the elements of formality under section 7114(a)(2)(A).
     The Authority has previously noted the limited scope of the IRS, Fresno
     holding.  See Barstow, 52 FLRA at 1045-47.  So too have the other courts of
     appeals that have addressed the issue.  The Tenth Circuit characterized IRS,
     Fresno as harmonizing the union's right under section 7114(a)(2)(A) to be
     present at formal discussions and EEOC's regulations permitting the informal
     resolution of complaints without revealing the identity of the complainant.
     Veterans Affairs, Denver, 3 F.3d at 1391.[16]
  The D.C. Circuit also found the holding of IRS, Fresno to concern only a
  "precomplaint conference."  NTEU, 774 F.2d at 1188.  The D.C. Circuit noted
  that the IRS, Fresno Court's decision "may have" construed the term
  "grievance" to include only disputes covered by an NGP.  Id.  However, that
  Court treated this aspect of IRS, Fresno only as a "suggestion."  Id.
  Significantly, and as we discuss below (section C.2.), a subsequent panel of
  this Court found a complaint filed under a statutory procedure and not under
  the NGP to be a "grievance" within the scope of section 7114(a)(2)(A),
  commenting in this regard that it found the D.C. Circuit's reasoning on the
  point "more persuasive" than the dicta in IRS, Fresno .  Veterans Affairs,
  Long Beach, 16 F.3d at 1534.
  Another indication of the narrow character of the Court's holding in IRS,
  Fresno can be found in the Court's statements that " the precomplaint
  conciliation conference  . . . did  not concern a 'grievance' [within the
  scope of section 7114(a)(2)(A) of the Statute]."  IRS, Fresno, 706 F.2d at
  1024 (emphasis added).  Clearly, the Court's holdings in this regard were
  limited to the specific circumstances of the case, i.e., to the precomplaint
  process.    Indeed, the Court explicitly limited its opinion regarding
  whether the meeting concerned a "grievance" to the facts of the case three
  times.  In addition to the statement quoted above, the Court stated that
  "the EEOC procedures involved in this case are not controlled by 5 U.S.C. §
  7114(a)(2)(A)  because they are discrete and separate from the grievance
  process[,]" 706 F.2d at 1024 (emphasis added); and that "we decide that the
  EEOC claim of discrimination in this case did not constitute a
  'grievance'[.]" 706 F.2d at 1025 (emphasis added).
  In light of the IRS, Fresno panel's primary focus, the Court's more general
  statements such as those relied upon by Luke AFB (Br. 23, quoting from IRS,
  Fresno, 706 F.2d at 1024) must be read to apply only to informal
  precomplaint procedures and not all EEOC processes.  To the extent that
  statement is interpreted any more broadly, it would go beyond the facts and
  circumstances of the case and therefore constitute dicta.  See Export Group
  v. Reef Industries, Inc., 54 F.3d 1466, 1472 (9th Cir. 1995) ("dicta" are
  expressions in the court's opinion which go beyond the facts before the
  court, and they have no binding or precedential effect).[17]
  In summary, the holding in IRS, Fresno was expressly limited to the
  precomplaint stage of the EEO process.  In contrast, it is undisputed that
  the instant case involves a formal complaint.
  2.  In all relevant respects, this case is indistinguishable from Veterans
  Affairs, Long Beach
  This Court had the opportunity to revisit the issue of the interpretation
  and application of section 7114(a)(2)(A) in Veterans Affairs, Long Beach.
  In Veterans Affairs, Long Beach, the Court found that witness interviews
  with bargaining unit employees conducted by a representative of an employer
  agency in connection with an MSPB appeal were formal discussions concerning
  a "grievance" within the scope of section 7114(a)(2)(A).  16 F.3d at 1536.
  The Court found that the Authority's broad reading of the term grievance "as
  encompassing statutory appeals" was "in conformance with the language of the
  Statute."  Id. at 1533.
  With respect to the applicability of section 7114(a)(2)(A), there is no
  meaningful difference between Veterans Affairs, Long Beach  and the instant
  case.  Both involve employee complaints pursued through alternative
  statutory procedures rather than through the parties' NGP, and in both cases
  the procedures were governed by a regulatory scheme "separate and distinct"
  from the Statute.  The holding of the Court in Veterans Affairs, Long
  Beach-- that the term "grievance" encompasses statutory appeals-- is wholly
  applicable to the instant case.
  Luke AFB attempts to distinguish Veterans Affairs, Long Beach by emphasizing
  that the discrimination complaint at issue here was excluded from the
  parties' NGP, whereas the Court in Veterans Affairs, Long Beach noted that
  the dispute there was "intimately connected with the Union's collective
  bargaining agreement."  Br. 36 (quoting from Veterans Affairs, Long Beach,
  16 F.3d at 1534).  Luke AFB's contentions should be rejected.
  Although the Court in Veterans Affairs, Long Beach noted a possible
  connection between the statutory MSPB appeal and the parties' NGP, that
  connection was clearly not the basis of its decision and is therefore dicta.
  The basis of the Court's decision was the broad definition of "grievance"
  under the Statute that the Court held includes statutory appeals.  See 16
  F.3d at 1533.  In that regard, the Court in Veterans Affairs, Long Beach
  recognized that section 7121(e) of the Statute permitted the employee's
  "grievance" in that case to be filed through the NGP or through the
  statutory procedure.  Section 7121(d) authorizes the same choice with
  respect to formal discrimination complaints, such as those at issue in the
  instant case.  That the complaint in the instant case  was, in fact,
  excluded from the NGP is of no consequence.  Analytically, the statutory
  appeal is a "grievance" within the Statute's framework simply because it
  concerns an employment-related complaint.  See NTEU, 774 F.2d at 1185 n. 5
  (treating as irrelevant whether parties had excluded matter at issue there
  from the NGP).
  In addition, Luke AFB mistakenly relies (Br. 34) on dicta in Veterans
  Affairs, Long Beach in support of its erroneous contention that all EEO
  proceedings are excluded from the statutory definition of "grievance."  The
  passage relied upon (Veterans Affairs, Long Beach, 16 F.3d at 1534) was that
  panel's overly broad characterization of the holding in IRS Fresno.  As
  discussed above, the holding in IRS, Fresno was limited to the precomplaint
  stage of the EEO process.  Further, the Veterans Affairs, Long Beach panel's
  characterization of IRS, Fresno was not only unnecessary to distinguish the
  two cases, but also was in tension with the latter case's holding that
  "grievance . . . encompass[es] statutory appeals."  Accordingly, Veterans
  Affairs, Long Beach offers no support for Luke AFB's contentions.  See In Re
  Osborne, 76 F.3d 306, 309 (9th Cir. 1996) (the doctrine of stare decisis
  concerns only the holding of previous cases, not the rationales).[18]
  The clear holding in Veterans Affairs, Long Beach was that statutory appeals
  are encompassed within the Statute's definition of grievance.  There is no
  principled basis for not applying that holding here as well.
CONCLUSION
  Luke AFB's petition for review should be denied and the Authority's order
  should be enforced.
            Respectfully submitted,



            DAVID M. SMITH
              Solicitor


            WILLIAM R. TOBEY
              Deputy Solicitor


            JAMES F. BLANDFORD
              Attorney


            Federal Labor Relations
            Authority
            607 14th Street, N.W.
            Washington, D.C. 20424
            (202) 482-6620

March 1999




CERTIFICATION PURSUANT TO FRAP RULE 32
AND CIRCUIT RULE 28


  Pursuant to Federal Rule of Appellate Procedure 32 and Circuit Rule 32(e)4),
  I certify that the attached brief is proportionately spaced, utilizes 14-
  point serif type, and contains 8954 words.


March 4, 1999

___________________________
         James F. Blandford





IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

_______________________________

LUKE AIR FORCE BASE, ARIZONA,
          Petitioner/Cross-Respondent

         v.

FEDERAL LABOR RELATIONS AUTHORITY,          No. 98-71173
          Respondent/Cross-Petitioner         & 98-71347

        and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1547,
          Intervenor
_______________________________




CERTIFICATE OF SERVICE

  I certify that copies of the Brief For The Federal Labor Relations
  Authority, have been served this day, by first-class mail, upon the
  following:

William Kanter, Esq.            Kevin M. Grile
Sandra Wien Simon, Esq.         Assistant General Counsel
Appellate Staff                 American Federation of
Civil Division, Room 9102         Government Employees,
Department of Justice           AFL-CIO
601 D Street, N.W.              Room 300
Washington, D.C.  20530         Chicago, IL 60610


                      _________________________
                              Jennifer A. Baker
                           Paralegal Specialist

March 4, 1999



STATUTORY AND REGULATORY ADDENDUM

TABLE OF CONTENTS

1.  5 U.S.C. § 7105 (a) (2) (G)  A-1

2.  5 U.S.C. § 7116 (a) (1), (8)  A-2

3.  5 U.S.C. § 7118  A-3

4.  5 U.S.C. § 7121 (a), (c), (d), (e)   A-6

5.  5 U.S.C. § 7123 (a), (b), (c)  A-8

6.  29 C.F.R. § 1614.105  A-10

7.  29 C.F.R. § 1614.301 (b)  A-13

§ 7105.  Powers and duties of the Authority
(a)

* * * * * * * * * *

  (2) The Authority shall, to the extent provided in this chapter and in
  accordance with regulations prescribed by the Authority -

* * * * * * * * * *

    (G) conduct hearings and resolve complaints of unfair labor
practices under section 7118 of this title;

§ 7116.  Unfair labor practices
(a) For the purpose of this chapter, it shall be an unfair labor practice for an
agency -
  (1) to interfere with, restrain, or coerce any employee in the exercise by
  the employee of any right under this chapter; or

* * * * * * * * * *

  (8) to otherwise fail or refuse to comply with any provision of this
  chapter.

§ 7118.  Prevention of unfair labor practices
(a)
  (1) If any agency or labor organization is charged by any person with having
  engaged in or engaging in an unfair labor practice, the General Counsel
  shall investigate the charge and may issue and cause to be served upon the
  agency or labor organization a complaint. In any case in which the General
  Counsel does not issue a complaint because the charge fails to state an
  unfair labor practice, the General Counsel shall provide the person making
  the charge a written statement of the reasons for not issuing a complaint.
  (2) Any complaint under paragraph (1) of this subsection shall contain a
  notice -
    (A) of the charge;
    (B) that a hearing will be held before the Authority (or any  member
    thereof or before an individual employed by the authority  and
    designated for such purpose); and
    (C) of the time and place fixed for the hearing.
  (3) The labor organization or agency involved shall have the right to file
  an answer to the original and any amended complaint and to appear in person
  or otherwise and give testimony at the time and place fixed in the complaint
  for the hearing.
  (4)
    (A) Except as provided in subparagraph (B) of this paragraph, no
    complaint shall be issued based on any alleged unfair labor practice
    which occurred more than 6 months before the filing of the charge with
    the Authority.
    (B) If the General Counsel determines that the person filing any charge
    was prevented from filing the charge during the 6-month period referred
    to in subparagraph (A) of this paragraph by reason of -
      (i) any failure of the agency or labor organization against which
      the charge is made to perform a duty owed to the person, or
      (ii) any concealment which prevented discovery of the alleged
unfair labor practice during the 6-month period, the General Counsel may issue a
complaint based on the charge if the charge was filed during the 6-month period
beginning on the day of the discovery by the person of the alleged unfair labor
practice.
  (5) The General Counsel may prescribe regulations providing for informal
  methods by which the alleged unfair labor practice may be resolved prior to
  the issuance of a complaint.
  (6) The Authority (or any member thereof or any individual employed by the
  Authority and designated for such purpose) shall conduct a hearing on the
  complaint not earlier than 5 days after the date on which the complaint is
  served. In the discretion of the individual or individuals conducting the
  hearing, any person involved may be allowed to intervene in the hearing and
  to present testimony. Any such hearing shall, to the extent practicable, be
  conducted in accordance with the provisions of subchapter II of chapter 5 of
  this title, except that the parties shall not be bound by rules of evidence,
  whether statutory, common law, or adopted by a court. A transcript shall be
  kept of the hearing. After such a hearing the Authority, in its discretion,
  may upon notice receive further evidence or hear argument.
  (7) If the Authority (or any member thereof or any individual employed by
  the Authority and designated for such purpose) determines after any hearing
  on a complaint under paragraph (5) of this subsection that the preponderance
  of the evidence received demonstrates that the agency or labor organization
  named in the complaint has engaged in or is engaging in an unfair labor
  practice, then the individual or individuals conducting the hearing shall
  state in writing their findings of fact and shall issue and cause to be
  served on the agency or labor organization an order -
    (A) to cease and desist from any such unfair labor practice in which the
    agency or labor organization is engaged;
    (B) requiring the parties to renegotiate a collective bargaining
    agreement in accordance with the order of the Authority and requiring
    that the agreement, as amended, be given retroactive effect;
    (C) requiring reinstatement of an employee with backpay in accordance
    with section 5596 of this title; or
    (D) including any combination of the actions described in subparagraphs
    (A) through (C) of this paragraph or such other action as will carry out
    the purpose of this chapter. If any such order requires reinstatement of
    an employee with backpay, backpay may be required of the agency (as
    provided in section 5596 of this title) or of the labor organization, as
    the case may be, which is found to have engaged in the unfair labor
    practice involved.
  (8) If the individual or individuals conducting the hearing determine that
  the preponderance of the evidence received fails to demonstrate that the
  agency or labor organization named in the complaint has engaged in or is
  engaging in an unfair labor practice, the individual or individuals shall
  state in writing their findings of fact and shall issue an order dismissing
  the complaint.
b) In connection with any matter before the Authority in any proceeding under
this section, the Authority may request, in accordance with the provisions of
section 7105(i) of this title, from the Director of the Office of Personnel
Management an advisory opinion concerning the proper interpretation of rules,
regulations, or other policy directives issued by the Office of Personnel
Management.
§ 7121.  Grievance procedures
(a)
  (1) Except as provided in paragraph (2) of this subsection, any collective
  bargaining agreement shall provide procedures for the settlement of
  grievances, including questions of arbitrability. Except as provided in
  subsections (d), (e), and (g) of this section, the procedures shall be the
  exclusive administrative procedures for resolving grievances which fall
  within its coverage.
  (2) Any collective bargaining agreement may exclude any matter from the
  application of the grievance procedures which are provided for in the
  agreement.

* * * * * * * * * *

(c) The preceding subsections of this section shall not apply with respect to
any grievance concerning -
  (1) any claimed violation of subchapter III of chapter 73 of this title
  (relating to prohibited political activities);
  (2) retirement, life insurance, or health insurance;
  (3) a suspension or removal under section 7532 of this title;
  (4) any examination, certification, or appointment; or
  (5) the classification of any position which does not result in the
  reduction in grade or pay of an employee.
(d) An aggrieved employee affected by a prohibited personnel practice under
section 2302(b)(1) of this title which also falls under the coverage of the
negotiated grievance procedure may raise the matter under a statutory procedure
or the negotiated procedure, but not both. An employee shall be deemed to have
exercised his option under this subsection to raise the matter under either a
statutory procedure or the negotiated procedure at such time as the employee
timely initiates an action under the applicable statutory procedure or timely
files a grievance in writing, in accordance with the provisions of the parties'
negotiated procedure, whichever event occurs first. Selection of the negotiated
procedure in no manner prejudices the right of an aggrieved employee to request
the Merit Systems Protection Board to review the final decision pursuant to
section 7702 of this title in the case of any personnel action that could have
been appealed to the Board, or, where applicable, to request the Equal
Employment Opportunity Commission to review a final decision in any other matter
involving a complaint of discrimination of the type prohibited by any law
administered by the Equal Employment Opportunity Commission.
(e)
  (1) Matters covered under sections 4303 and 7512 of this title which also
  fall within the coverage of the negotiated grievance procedure may, in the
  discretion of the aggrieved employee, be raised either under the appellate
  procedures of section 7701 of this title or under the negotiated grievance
  procedure, but not both. Similar matters which arise under other personnel
  systems applicable to employees covered by this chapter may, in the
  discretion of the aggrieved employee, be raised either under the appellate
  procedures, if any, applicable to those matters, or under the negotiated
  grievance procedure, but not both. An employee shall be deemed to have
  exercised his option under this subsection to raise a matter either under
  the applicable appellate procedures or under the negotiated grievance
  procedure at such time as the employee timely files a notice of appeal under
  the applicable appellate procedures or timely files a grievance in writing
  in accordance with the provisions of the parties' negotiated grievance
  procedure, whichever event occurs first.
  (2) In matters covered under sections 4303 and 7512 of this title which have
  been raised under the negotiated grievance procedure in accordance with this
  section, an arbitrator shall be governed by section 7701(c)(1) of this
  title, as applicable.

§ 7123. Judicial review; enforcement
(a) Any person aggrieved by any final order of the Authority other than an order
under-
  (1) section 7122 of this title (involving an award by an arbitrator), unless
  the order involves an unfair labor practice under section 7118 of this
  title, or
  (2) section 7112 of this title (involving an appropriate unit
  determination), may, during the 60-day period beginning on the date on which
  the order was issued, institute an action for judicial review of the
  Authority's order in the United States court of appeals in the circuit in
  which the person resides or transacts business or in the United States Court
  of Appeals for the District of Columbia.
(b) The Authority may petition any appropriate United States court of appeals
for the enforcement of any order of the Authority and for appropriate temporary
relief or restraining order.
(c) Upon the filing of a petition under subsection (a) of this section for
judicial review or under subsection (b) of this section for enforcement, the
Authority shall file in the court the record in the proceedings, as provided in
section 2112 of title 28. Upon the filing of the petition, the court shall cause
notice thereof to be served to the parties involved, and thereupon shall have
jurisdiction of the proceeding and of the question determined therein and may
grant any temporary relief (including a temporary restraining order) it
considers just and proper, and may make and enter a decree affirming and
enforcing, modifying and enforcing as so modified, or setting aside in whole or
in part the order of the Authority. The filing of a petition under subsection
(a) or (b) of this section shall not operate as a stay of the Authority's order
unless the court specifically orders the stay. Review of the Authority's order
shall be on the record in accordance with section 706 of this title. No
objection that has not been urged before the Authority, or its designee, shall
be considered by the court, unless the failure or neglect to urge the objection
is excused because of extraordinary circumstances. The findings of the Authority
with respect to questions of fact, if supported by substantial evidence on the
record considered as a whole, shall be conclusive. If any person applies to the
court for leave to adduce additional evidence and shows to the satisfaction of
the court that the additional evidence is material and that there were
reasonable grounds for the failure to adduce the evidence in the hearing before
the Authority, or its designee, the court may order the additional evidence to
be taken before the Authority, or its designee, and to be made a part of the
record. The Authority may modify its findings as to the facts, or make new
findings by reason of additional evidence so taken and filed. The Authority
shall file its modified or new findings, which, with respect to questions of
fact, if supported by substantial evidence on the record considered as a whole,
shall be conclusive. The Authority shall file its recommendations, if any, for
the modification or setting aside of its original order. Upon the filing of the
record with the court, the jurisdiction of the court shall be exclusive and its
judgment and decree shall be final, except that the judgment and decree shall be
subject to review by the Supreme Court of the United States upon writ of
certiorari or certification as provided in section 1254 of title 28.

Code of Federal Regulations
Title 29, Volume 4, Parts 900 to 1899
Revised as of July 1, 1998
From the U.S. Government Printing Office via GPO Access
CITE: 29CFR1614.105

[Page 256-257]

TITLE 29--LABOR

CHAPTER XIV--EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

PART 1614--FEDERAL SECTOR EQUAL EMPLOYMENT OPPORTUNITY--Table of Contents

Subpart A--Agency Program To Promote Equal Employment Opportunity

Sec. 1614.105  Pre-complaint processing.

    (a) Aggrieved persons who believe they have been discriminated against on
    the basis of race, color, religion, sex, national origin, age or handicap
    must consult a Counselor prior to filing a complaint in order to try to
    informally resolve the matter.
      (1) An aggrieved person must initiate contact with a Counselor within 45
      days of the date of the matter alleged to be discriminatory or, in the
      case of personnel action, within 45 days of the effective date of the
      action.
       (2) The agency or the Commission shall extend the 45-day time limit in
       paragraph (a)(1) of this section when the individual shows that he or
       she was not notified of the time limits and was not otherwise aware of
       them, that he or she did not know and reasonably should not have been
       known that the discriminatory matter or personnel action occurred, that
       despite due diligence he or she was prevented by circumstances beyond
       his or her control from contacting the counselor within the time limits,
       or for other reasons considered sufficient by the agency or the
       Commission.
    (b) At the initial counseling session, Counselors must advise individuals in
    writing of their rights and responsibilities, including the right to request
    a hearing after an investigation by the agency, election rights pursuant to
    Secs. 1614.301 and 1614.302, the right to file a notice of intent to sue
    pursuant to Sec. 1614.201(a) and a lawsuit under the ADEA instead of an
    administrative complaint of age discrimination under this part, the duty to
    mitigate damages, administrative and court time frames, and that only the
    matter(s) raised in precomplaint counseling (or issues like or related to
    issues raised in pre-complaint counseling) may be alleged in a subsequent
    complaint filed with the agency. Counselors must advise individuals of their
    duty to keep the agency and Commission informed of their current address and
    to serve copies of appeal papers on the agency. The notice required by
    paragraphs (d) or (e) of this section shall include a notice of the right to
    file a class complaint. If the aggrieved person informs the Counselor that
    he or she wishes to file a class complaint, the Counselor shall explain the
    class complaint procedures and the responsibilities of a class agent.
    (c) Counselors shall conduct counseling activities in accordance with
    instructions contained in Commission Management Directives. When advised
    that a complaint has been filed by an aggrieved person, the Counselor shall
    submit a written report within 15 days to the agency office that has been
    designated to accept complaints and the aggrieved person concerning the
    issues discussed and actions taken during counseling.
    (d) Unless the aggrieved person agrees to a longer counseling period under
    paragraph (e) of this section, or the agency has an established dispute
    resolution procedure under paragraph (f) of this section, the Counselor
    shall conduct the final interview with the aggrieved person within 30 days
    of the date the aggrieved person brought the matter to the Counselor's
    attention. If the matter has not been resolved, the aggrieved person shall
    be informed in writing by the Counselor, not later than the thirtieth day
    after contacting the Counselor, of the right to file a discrimination
    complaint. The notice shall inform the complainant of the right to file a
    discrimination complaint within 15 days of receipt of the notice, of the
    appropriate official with whom to file a complaint and of the complainant's
    duty to assure that the agency is informed immediately if the complainant
    retains counsel or a representative.
    (e) Prior to the end of the 30-day period, the aggrieved person may agree in
    writing with the agency to postpone the final interview and extend the
    counseling period for an additional period of no more than 60 days. If the
    matter has not been resolved before the conclusion of the agreed extension,
    the notice described in paragraph (d) of this section shall be issued.
    (f) Where the agency has an established dispute resolution procedure and the
    aggrieved individual agrees to participate in the procedure, the pre-
    complaint processing period shall be 90 days. If the matter has not been
    resolved before the 90th day, the notice described in paragraph (d) of this
    section shall be issued.
    (g) The Counselor shall not attempt in any way to restrain the aggrieved
    person from filing a complaint. The Counselor shall not reveal the identity
    of an aggrieved person who consulted the Counselor, except when authorized
    to do so by the aggrieved person, or until the agency has received a
    discrimination complaint under this part from that person involving that
    same matter.

Code of Federal Regulations
Title 29, Volume 4, Parts 900 to 1899
Revised as of July 1, 1998
From the U.S. Government Printing Office via GPO Access
CITE: 29CFR1614.301

[Page 269]
TITLE 29--LABOR
CHAPTER XIV--EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
PART 1614--FEDERAL SECTOR EQUAL EMPLOYMENT OPPORTUNITY--Table of Contents

Subpart C--Related Processes
Sec. 1614.301  Relationship to negotiated grievance procedure.

* * * * * * * * * *

    (b) When a person is not covered by a collective bargaining agreement that
    permits allegations of discrimination to be raised in a negotiated grievance
    procedure, allegations of discrimination shall be processed as complaints
    under this part.



[1]     Pertinent statutory and regulatory provisions are set forth in Addendum
A to this brief.
[2]    All dates hereinafter refer to 1995 unless otherwise noted.
[3]    Local 1547 filed an amended charge on October 26.  ER 6.
[4]    Section 7114(a) provides in pertinent part that:

(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[.]
[5]    The ALJ specifically referred to 29 C.F.R. Part 1614 and the EEOC's
Federal Sector Complaints Processing Manual, EEO Management Directive 110 (EEO
MD 110).  ER