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 24.
[6] These findings of the Authority have not been challenged before this
Court and will not be discussed further. Luke AFB presses here only the
contention that the meeting did not concern a "grievance."
[7] Nevertheless, the Authority concluded that the grievance in this case did
affect the bargaining unit as a whole. The Authority found support for this
conclusion in the testimony of Cano and Luke AFB's own witnesses about Cano's
concern that she not be placed in a job for which other employees may have been
competing. ER 42-43.
[8] Although Part II.B. of Luke AFB's brief (Br. 36) is captioned "The
January 19, 1995 Session Was Not A 'Formal Discussion' Of A Grievance Within The
Meaning OF 5 U.S.C. 7114(a)(2)(A)," that section of the brief does not contest
the Authority's findings with respect to the elements of a "formal discussion."
Rather, there Luke AFB reiterates its contention that a matter covered by EEOC's
regulations and not the parties' NGP cannot be a formal discussion concerning a
grievance within the scope of section 7114(a)(2)(A).
[9] In claiming that the term "grievance" as used in section 7114(a)(2)(A)
refers only to matters covered by an NGP, Luke AFB also ignores the fact that
where Congress intended to refer exclusively to NGPs it did so explicitly. See,
e.g., 5 U.S.C. § 7121(d) and (e).
[10] Contrary to Luke AFB's contentions (Br. 39-40), these interests are not
relinquished where the parties to a collective bargaining agreement agree to
exclude a particular class of statutory appeals from the NGP. There is no basis
to conclude that by excluding discrimination complaints from the NGP, the union
was intending to forfeit its statutory rights under section 7114(a)(2)(A).
Indeed, it may have been willing to exclude the matter from the NGP in reliance
on section 7114(a)(2)(A) to protect its institutional interests. In addition,
possible reasons for exclusion include such interests as avoiding the potential
cost of arbitrating discrimination complaints.
[11] Because the EEOC has not prohibited union attendance at meetings such as
that at issue here, the Authority did not address whether the EEOC would have
the authority to promulgate such a regulation. The question is, therefore, not
before the Court.
[12] In Veterans Affairs, Long Beach, the Court distinguished the relevant
MSPB regulations from the specific EEOC regulations applicable in IRS, Fresno,
16 F.3d at 1532. However, the regulations that the Court found applicable in
IRS, Fresno referred specifically to the informal proceedings at issue in that
case. Id. It is not disputed that those regulations do not apply to the formal
EEO proceedings in the instant case. See below (section C.1.) for a discussion
of IRS, Fresno.
[13] Contrary to Luke AFB's contentions (Br.30), there is no reason to assume
that a union representative would disclose the substance of any settlement
discussions in order to perform its function of protecting the interests of the
bargaining unit. The union's interest is in understanding the nature of the
grievance and comprehending the impact on the bargaining unit of any final
settlement reached by the parties. See NTEU, 774 F.2d at 1188.
[14] The Authority contends that the holding in IRS, Fresno is limited to
precomplaint proceedings and, therefore, cases like this one involving formal
complaints are distinguishable. See Barstow, 52 FLRA at 1046. The Authority
has not had another opportunity to consider whether it should adopt, as its own,
the limited holding of IRS Fresno.
[15] Precomplaint proceedings are currently set forth at 29 C.F.R. § 1614.105
(1998). As relevant to the matters at issue here, the revised regulations
reflect no substantive differences from those set out in IRS, Fresno.
[16] The Tenth Circuit's Veterans Affairs, Denver, decision, like this
Court's decision in Veterans Affairs, Long Beach, involved discussions
concerning an MSPB appeal.
[17] Further, to interpret the holding of IRS, Fresno to extend beyond the
informal precomplaint process would put that decision in conflict with this
Court's later decision in Veterans Affairs, Long Beach. See Matter of Howard,
972 F.2d 639, 641 (5th Cir 1992) (cases in "apparent tension" read so as to
avoid conflict). The Veterans Affairs, Long Beach decision is discussed below
in section C.2.
[18] Luke AFB also cites two private sector cases to support its contention
that the union had no right under section 7114(a)(2)(A) of the Statute to attend
the January 19 meeting. The cases are inapposite. First, and as a general
matter, private sector cases have little or no bearing on this case because this
case concerns specific provisions in the Statute that have no counterparts in
the National Labor Relations Act (NLRA). The term "grievance" is not expressly
defined in the NLRA, nor is there a provision for representation "formal
discussions" between employers and bargaining unit employees.
Second, both cases are distinguishable on their facts. Detroit Edison Co.
v. NLRB, 440 U.S. 301, 318 (1979), concerned a private sector union's
entitlement to data maintained by the employer. In Wright v. Universal
Maritime Serv. Corp., the Supreme Court held only that a general
arbitration clause in a collective bargaining agreement did not waive
covered employees' rights to a judicial forum for claims of employment
discrimination covered by federal statute. 119 S. Ct. 391, 397 (1998).
