[ v61 p181 ]
61 FLRA No. 36
UNITED STATES
DEPARTMENT OF VETERANS AFFAIRS
NORTHERN ARIZONA
VETERANS AFFAIRS HEALTHCARE
PRESCOTT, ARIZONA
(Respondent)
and
AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 2401, AFL-CIO
(Charging Party)
DE-CA-04-0034
_____
DECISION AND ORDER
August 29, 2005
_____
Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members [n1]
I. Statement of the Case
This unfair labor practice (ULP) case is before the Authority on exceptions to a decision of the Administrative Law Judge (Judge) filed by the Respondent. The General Counsel (GC) filed an opposition to the Respondent's exceptions.
The complaint alleges that the Respondent violated § 7116(a)(1) and (8) of the Federal Service Labor-Management Relations Statute (the Statute) by holding a formal discussion with a bargaining unit employee without affording the Charging Party notice or an opportunity to be present.
Upon consideration of the Judge's decision and the entire record, we conclude for the reasons discussed below that the Respondent did not commit the unfair labor practices alleged in the complaint. Accordingly, we will dismiss the complaint.
II. Background and Judge's Decision
A bargaining unit employee filed a grievance alleging, as relevant here, that the Respondent violated the parties' collective bargaining agreement by not temporarily promoting the employee for performing higher graded duties. The Respondent denied the requested remedy of a temporary promotion because a desk audit indicated that the employee did not perform the higher graded duties as alleged. In view of the desk audit, the Charging Party declined to pursue the temporary promotion in arbitration. See Stipulation of Facts ¶ 15.
Subsequently, the employee filed a formal equal employment opportunity (EEO) complaint alleging continued harassment, as well as discrimination based on religion and gender. Two weeks later, the employee made an oral settlement offer to the Respondent's EEO manager. The EEO manager reduced to writing the employee's proposed settlement and presented it to him. The employee requested some additional changes, which the EEO manager made.
After the employee's requested changes were made, the EEO manager telephoned the employee and asked him to come to her office to execute the final settlement agreement. When the employee arrived, the EEO manager informed him that the Charging Party had a right to be present at the meeting. The employee responded that he did not want the Charging Party to attend. According to the parties' stipulation, the employee "distrusted the [Charging Party] based on prior dealings." Id. ¶ 22. The EEO manager then asked the employee to write a note stating that he did not want the Charging Party to be present, and the employee asked her to type the note for him. The EEO manager agreed and drafted the first sentence of the note; the employee dictated the second sentence. [n2] Consequently, the Charging Party was not notified of the meeting and did not attend.
During the meeting, there was no discussion of the terms of the settlement agreement because the parties already were in agreement over the terms. In addition, no confidentiality agreement was executed and no notes were taken. The meeting lasted 15 minutes, with the employee signing the agreement settling his EEO complaint. As part of the settlement, the Respondent agreed to develop a WG-6 position for the employee, which [ v61 p182 ] would have no promotion potential and pay slightly less than his previous GS-6 position. See Exh. 12.
When the Charging Party became aware that the Respondent and the employee had reached a settlement and that the employee had obtained a new position, the Charging Party filed a ULP charge. The GC issued a complaint alleging that the Respondent violated the Statute by holding a formal discussion concerning the employee's EEO complaint without providing the Charging Party with notice or an opportunity to be present. The ULP was presented to the Judge on a stipulated record, and no hearing was held. The parties stipulated that this case "raises" the following issues: (1) Whether the employee's objection to the Charging Party's presence during the EEO settlement discussion with the EEO Manager created a direct conflict between the rights of the exclusive representative under the Statute and the rights of the employee; and (2) If a direct conflict did exist, should that conflict be resolved in favor of the employee or the exclusive representative. Stipulation of Fact ¶ 27. The parties further stipulated that "[t]here is no other argument of any kind which varies, alters, or adds to this [s]tipulation of [f]act." Id. at ¶ 28.
Initially, the Judge explained that, in order for the Charging Party to have a right to be represented at a formal discussion under § 7114(a)(2)(A) of the Statute, there must be (1) a discussion; (2) which is formal; (3) between a representative of the agency and a unit employee or the employee's representative; (4) concerning any grievance or any personnel policy or practice or other general condition of employment. See Judge's Decision at 5 (citing Luke Air Force Base, Ariz., 54 FLRA 716 (1998) (Luke Air Force Base)). With respect to the first requirement, the Judge found that the parties' stipulation "does not dispute that the Respondent engaged in a discussion within the meaning of . . .§ 7114(a)(2)(A)" of the Statute. Id. at 6. Therefore, the Judge found it unnecessary to address the first requirement. In addition, the Judge noted the Respondent's acknowledgement of Authority precedent holding that EEO complaints filed under the EEOC's process are grievances within the meaning of the Statute, and he found it unnecessary to address the fourth requirement as well. See id. at 6 (citing United States Dep't of the Air Force, Luke Air Force Base, Ariz., 58 FLRA 528 (2003) (Luke II) and United States Dep't of the Air Force, Luke Air Force Base, Ariz., 59 FLRA 16 (2003) (Luke III)). The Judge made no express findings with regards to the other two requirements.
The Judge found that the "basic issue in this case has been decided by the Authority and the Courts." Id. (citing Luke Air Force Base and United States Dep't of the Air Force, 436th Airlift Wing, Dover Air Force Base, Dover, Del., 57 FLRA 304 (2001) (Chairman Cabaniss dissenting) (Dover), aff'd sub nom Dover Air Force Base v. FLRA, 316 F.3d 280 (D.C. Cir. 2003)). In this connection, the Judge found that the presence of the Charging Party's representative at the meeting would not have conflicted with EEOC regulations, the ADR Act or other statutes regarding confidentiality.
The Judge rejected the Respondent's argument that the employee's objection to the Charging Party's presence created a "`direct' conflict between the interests of the [U]nion representative and those of the employee complainant." Id. at 7. In this regard, the Judge found that the employee's objection to the Charging Party's presence at the meeting "did not concern confidentiality but, distrust for the" Charging Party. Id. Furthermore, the Judge found that the Charging Party "already had direct knowledge of [the employee's] case based on its representation of him during the grievance process[.]" Id. In any event, the Judge found that the Charging Party would have been bound by the confidentiality provision in the settlement agreement. Relying on the Authority's decision in Dover, the Judge also found that the Charging Party was a "party" within the meaning of the ADR Act and, therefore, "should have been afforded an opportunity to attend." Id. at 10.
Finally, the Judge determined that, even if a direct conflict existed, the conflict should be resolved in favor of the Charging Party's right to attend the meeting. In reaching this conclusion, the Judge found that the remedy obtained in the settlement had the potential of decreasing opportunities for other employees, which he found was "precisely the type of institutional problem in which an exclusive representative would have an interest." Id.
Based on the foregoing, the Judge found that the Respondent violated the Statute as alleged and recommended remedies of a cease and desist order and notice posting.
III. Positions of the Parties
A. Respondent's Exceptions
The Respondent excepts to the Judge's failure to address the questions whether the meeting was a formal discussion, and whether the disputed meeting concerned a grievance, within the meaning of § 7114(a)(2)(A) of the Statute. According to the Respondent, it denied the GC's allegation in the complaint that the meeting was a formal discussion and, therefore, the Judge was required [ v61 p183 ] to resolve that issue. See Exceptions at 15. The Respondent argues that the meeting was not a formal discussion within the meaning of the Statute (citing United States Dep't of Energy, Rocky Flats Field Office, Golden, Colo., 57 FLRA 754 (2002) (Rocky Flats)). Id. According to the Respondent, the facts here are "strikingly similar" to those in Rocky Flats, where the Authority found that a meeting to settle an EEO complaint was not a formal discussion because, among other things, the discussion was "impromptu and employee-initiated." Id. (quoting Rocky Flats, 57 FLRA at 755). The Respondent claims that the meeting at issue here was also impromptu and employee-initiated. In this connection, the Respondent asserts that the employee "initiated all prior settlement discussions" leading up to the meeting at issue, in which the EEO manager asked the employee "to come to her office to sign the final settlement document[.]" Id. According to the Respondent, "the settlement discussions overall were impromptu in nature, unstructured, and initiated by" the employee. Id.
The Respondent also argues that the employee "created a clear `direct' conflict by specifying in writing that he personally objected to the [Charging Party's] presence at his settlement meeting" with the EEO manager. Id. at 6. This objection, the Respondent claims, implicated the employee's "right to confidentiality as an `identifiable victim of discrimination' [and] his right to resolve his discrimination complaint outside the presence of the Charging Party[.]" Id. at 8. The Respondent further asserts that the direct conflict should be resolved in favor of the employee because it is Congress' intent that "a `direct conflict' between the rights of an exclusive representative under 5 U.S.C. § 7114(a)(2)(A) and the rights of an employee victim of discrimination . . . should presumably be resolved in favor of the latter." Id. at 9 (quoting NTEU, 744 F.2d at 1189 n.12) (emphasis in original).
Finally, the Respondent disputes the Judge's factual finding that the remedy obtained in the settlement, namely, the employee's new position, "had the potential of decreasing opportunities for other employees[.]" Id. at 16. In this connection, the Respondent asserts that this fact is not contained in the parties' stipulation of facts and is "pure conjecture" by the Judge. Id.
B. GC's Opposition
The GC asserts that the meeting was "formal in nature" because it was held for the purpose of settling an EEO complaint. Opposition at 5. Further, the GC disputes the Respondent's claim that this case is analogous to Rocky Flats. In this connection, the GC acknowledges that the "genesis" of the meeting in dispute here was a discussion that was initiated by the employee, but argues that the particular discussion in dispute was initiated by management. Id. at 6. The GC further asserts that in Rocky Flats, management did not set the date, time and location of the meeting, and could not give the Charging Party advance notice of the meeting, because the meeting was initiated in an impromptu manner by the employee. Finally, as for formality, the GC asserts that the meeting in Rocky Flats did not have an agenda, whereas the meeting in this case had as its agenda the presentation of a final settlement proposal.
The GC also disputes that the employee's objection to the Charging Party's presence was sufficient to create a direct conflict between the employee's rights as an EEO complainant and the Charging Party's right to attend a formal discussion. In this regard, the GC asserts, in agreement with the Judge, that the employee's objection was not based on any concerns for confidentiality, but was based on his distrust of the Charging Party. The GC also agrees with the Judge that the Charging Party was privy to the dispute at issue, based on its representation of the employee during a prior grievance.
Finally, the GC asserts that "the EEO [s]ettlement [a]greement clearly had the potential for decreasing other employees['] employment opportunities." See id. at 7.
IV. Analysis and Conclusions
A. The Judge Erred By Not Determining Whether the
October 10, 2003 Discussion Was Formal
To establish a violation of § 7114(a)(2)(A) of the Statute for failing to afford an exclusive representative an opportunity to be present at a formal discussion, the GC must establish, by a preponderance of the evidence, that the exclusive representative was not permitted to attend: (1) a discussion; (2) which was formal; (3) between a representative of the agency and a unit employee or the employee's representative; (4) concerning any grievance or any personnel policy or practice or other general condition of employment. See, e.g., Soc. Sec. Admin., Office of Hearings & Appeals, Boston Reg'l Office, Boston, Mass., 59 FLRA 875, 878 (2004).
The complaint in this case alleged that each of the four requirements was satisfied. See Complaint ¶¶ 11 17. The Respondent's answer to the complaint admitted that a discussion occurred between a representative of the Respondent and a unit employee (the first and third requirements). See Answer ¶¶ 11-13. The Respondent denied that the discussion was formal and [ v61 p184 ] that it concerned a grievance (the second and fourth requirements). See Answer ¶¶ 15-17. The parties stipulated to facts relevant to resolving the complaint, and agreed that the complaint "raises" issues as to whether there was a direct conflict between the rights of the Charging Party and the EEO complainant. Stipulation of Facts ¶ 27.
The Judge found that there was no dispute "that the Respondent engaged in a discussion" and that the formal EEO complaint at issue constituted a grievance within the meaning of § 7114(a)(2)(4). Judge's Decision at 6. However, the Judge made no findings with respect to whether the discussion was formal and/or whether it was between an agency representative and a unit employee. [n3] As to whether the discussion was formal, the Respondent asserts, and the GC does not dispute, that the Judge was required to decide this issue. See Exceptions at 14-15; Opposition at 5-6. The Respondent adds, in this regard, that there is no basis to conclude that it "conceded this issue." Exceptions at 14-15.
Based on the record as a whole, we conclude that the Respondent did not concede that the meeting was formal. To begin, there is no dispute that the complaint alleged, and the answer denied, that the meeting was formal. In addition, the parties did not stipulate that the meeting was formal. Moreover, the Judge did not find that the meeting was formal. The Judge also did not find that the Respondent conceded the formality of the discussion; the Judge found only that there was no dispute that there was a "discussion" within the meaning of the Statute. See Judge's Decision at 6. The issue of whether a "discussion" occurred is separate from the issue of whether such a "discussion" is formal, and both requirements must be satisfied to establish a violation of § 7114(a)(2)(4) of the Statute. See Luke Air Force Base, 54 FLRA at 723 (addressing formality issue separate from issue of whether there was a discussion, where the latter was not disputed).
Despite the foregoing, the record is not entirely clear on this point. In this connection, the GC claimed in its brief to the Judge that there was no dispute that the discussion was formal. See GC's Brief at 8. In addition, the Respondent's brief is silent on the issue of formality and the Respondent claimed that "review before the Authority" is restricted to the matters raised in paragraphs 27 and 28 of the parties' stipulation of facts. [n4] Respondent's Brief at 3. Nevertheless, reviewing the record as a whole, we cannot conclude that the Respondent conceded this necessary element of the violation. In reaching this conclusion, we note, in addition to the factors set forth above, that the parties' stipulation that the complaint "raises" certain issues does not also stipulate that those are the only issues raised. Similarly, the parties' stipulation that there are no arguments varying or modifying the stipulation concerns, by its plain terms, the stipulation of "facts" not issues. Stipulation ¶ 28. Just as significantly, the GC does not dispute that the Respondent's exception regarding formality is properly before the Authority and responds to that exception solely on the merits. See Opposition at 5-6. There is no question that if the parties intended to agree/stipulate that the discussion was formal, then they could easily have done so. They did not. Indeed, the parties' stipulation contains extensive factual stipulations that are relevant only to assessing whether the discussion was formal. See Stipulation ¶¶ 7, 9, 21-23, and 25.
Under Authority precedent, "[a]bsent a concession, a judge errs by failing to address an issue that is expressly alleged in the complaint." Dep't of Transp., Fed. Aviation Admin., Ft. Worth, Tex., 57 FLRA 604, 606 (2001). In the circumstances of this case, we find that the Judge erred by not determining whether the discussion was formal within the meaning of § 7114(a)(2)(A) of the Statute.
When a judge fails to resolve a necessary element of a violation, the Authority will resolve the issue if the record is sufficient for it to do so. Compare United States Dep't of Veterans Affairs, 56 FLRA 696, 698 (2000) (finding record sufficient to resolve alleged violation of Statute that judge failed to resolve) with United States Dep't of Justice, Immigration and Naturalization [ v61 p185 ] Serv., Chi. Dist. Office, Chi., Ill, 52 FLRA 686, 692 n.6 (1996) (remanding case to regional director where stipulated record was insufficient to permit the Authority to resolve the alleged violation). We find that the record is sufficient for the Authority to determine, based on the record, whether the discussion was formal within the meaning of § 7114(a)(2)(A) of the Statute.
B. The Discussion Was Not Formal
The determination as to whether a discussion is formal is based on the totality of the facts and circumstances presented. See F.E. Warren Air Force Base, Cheyenne, Wyo., 52 FLRA 149, 155-57 (1996) (F.E. Warren). In making that determination, the Authority has stated that a number of factors are relevant: (1) the status of the individual who held the discussions; (2) whether any other management representatives attended; (3) the site of the discussions; (4) how the meetings for the discussions were called; (5) how long the discussions lasted; (6) whether a formal agenda was established for the discussions; and (7) the manner in which the discussions were conducted. See GSA, 48 FLRA at 1355. In some cases, the Authority has considered an eighth factor, namely, whether attendance by the bargaining unit employee was mandatory. See, e.g., United States Dep't of Labor, Office of the Assistant Secretary for Admin. and Mgmt., Chi., Ill., 32 FLRA 465, 470 (1988). However, these factors are illustrative, and other factors may be identified and applied as appropriate. F.E. Warren, 52 FLRA at 157.
We conclude that the facts and circumstances of this case establish that the October 10th meeting was not a formal discussion within the meaning of § 7114(a)(2)(A) of the Statute. In this regard, the parties stipulated that attendance at the meeting was voluntary. See, e.g., Soc. Sec. Admin. and Soc. Sec. Admin., Field Operations, N.Y. Region, 16 FLRA 1021, 1033-34 (1984) (voluntary attendance suggests informality). The meeting was attended only by the employee and the EEO manager, and there is no indication in the record that the EEO manager is the employee's supervisor or is otherwise in the employee's chain of command. Cf. F.E. Warren, 52 FLRA at 158 n.8 (meeting was formal where held by high level management officials). Further, the parties stipulated that no other management official attended the meeting. Indeed, the Agency official responsible for executing the signed agreement was not even present at the meeting. See Exh. 12. The meeting was of a short duration, lasting only about 15 minutes, during which, no notes were taken and no confidentiality agreement was signed. Cf. Dover, 57 FLRA at 307 (signing confidentiality agreement evidences formal nature of meeting). Finally, there is no evidence in the record that there was a formal agenda prepared in advance of the meeting. [n5] The GC's claim otherwise is based solely on the fact that the meeting had a specific purpose, namely, to execute the settlement agreement. However, under Authority precedent, the existence of an agenda and the established purpose of a meeting are separate and distinct factors for assessing formality, and the existence of one does not establish the existence of the other. See Rocky Flats, 57 FLRA at 755-56 (finding no formal discussion where meeting had formal purpose, but no agenda); see also F.E. Warren, 52 FLRA at 158-59 (distinguishing purpose from agenda).
In concluding that the meeting was not formal, we consider significant the fact that all the settlement discussions leading up to the final meeting in which the settlement agreement was executed were initiated by the employee. In this connection, as the Respondent points out, this case is "strikingly similar" to Rocky Flats, in which the Authority found that a meeting was not a formal discussion because, among other things, the meeting was "impromptu and employee-initiated[.]" Rocky Flats, 57 FLRA at 755. Other Authority precedent confirms the importance of considering the nature of a meeting in view of the circumstances in which it arose when assessing whether a meeting is formal within the meaning of the Statute. See, e.g., F.E. Warren, 52 FLRA at 156 (Authority examines the nature of the discussions).
Here, the meeting was a follow-up to two prior meetings between the EEO manager and the employee, during which the employee, in an impromptu fashion, initiated settlement discussions concerning his formal EEO complaint. [n6] There is no dispute that the employee initiated these settlement discussions and requested that the EEO manager type a proposed settlement agreement. In fact, the GC expressly acknowledges that the "genesis" of the meeting "was an October 2nd discussion, which ended with [the employee] requesting that [the EEO manager] prepare the final EEO [s]ettlement [a]greement for the parties['] execution." Opposition at 6. When the employee requested additional changes to the first draft of the settlement agreement, which the EEO manager incorporated into the final settlement [ v61 p186 ] agreement, the EEO manager contacted the employee to execute the agreement. Consequently, this meeting was held in direct response to the employee's request for changes to a written settlement agreement resulting from settlement discussions that he himself initiated. As such, this case is distinguishable from decisions in which formal discussions were found based largely on management's initiation of the discussions. See, e.g., Soc. Sec. Admin., Balt., Md., 18 FLRA 249, 250 (1985).
The GC's argument that the EEO manager set the date, time, and location of the meeting does not undermine the "impromptu and employee-initiated" aspects of the meeting. In this regard, the entire stipulation on the matter provides that:
On October 10, 2003, [the EEO manager] telephoned [the employee] and asked him to come over to her office. The purpose of this meeting was for Respondent to present [the employee] with a final settlement proposal regarding his EEO matter. Respondent coordinated the date and time of the settlement session and made the location arrangements."
Stipulation of Facts ¶ 21. Thus, the EEO manager's "coordination" of the date, time and location of the meeting consisted simply and solely of telephoning the employee and asking him to come to her office. This level of planning falls far short of the level of "extensive involvement" that occurred in Dover, where the Authority found that a meeting was formal because the meeting was called by the respondent. See Dover, 57 FLRA at 307. In particular, the Authority found in Dover that the respondent coordinated available dates, scheduled the meeting at least a week in advance, and arranged for the session to take place at a local hotel. Such advance planning did not occur here. Moreover, even if, as the GC claims, the EEO manager had time to notify the Charging Party of the meeting, that fact would not compel a conclusion that under Rocky Flats, the meeting was a formal discussion. In this regard, although the lack of time to notify the charging party was noted "as a practical matter" in Rocky Flats, the Authority did not indicate that the mere opportunity to notify a charging party of a meeting transforms an otherwise informal meeting into a formal one. Rocky Flats, 57 FLRA FLRA at 755. Finally, the GC's reliance on Authority precedent finding that meetings held to mediate EEO complaints are formal in nature is misplaced. In this regard, there is no dispute that the meeting at issue here was not a mediation, as no third party neutral was in attendance.
We recognize that there are some indicia of formality present in this case. For instance, the meeting was held outside of the employee's immediate work area, which suggests formality under Authority precedent, and the meeting had a formal purpose, namely to execute a settlement agreement. However, as the Authority held in Rocky Flats, "discussions are not necessarily `formal' within the meaning of § 7114(a)(2)(A) of the Statute simply because they have some indicia of formality." Rocky Flats, 57 FLRA at 756 (citing Harry S. Truman Mem'l Veterans Hosp., Columbia, Mo., 16 FLRA 1049, 1051 (1984)). Rather, we consider these factors in view of the totality of the circumstances. In doing so, we find that the factors indicating that the meeting was not formal in nature outweigh these two factors suggesting formality. Therefore, based on the totality of the circumstances, we conclude that the meeting was not a formal discussion under § 7114(a)(2)(A) of the Statute. [n7]
V. Order
The complaint is dismissed. [ v61 p187 ]
Concurring Opinion of Member Armendariz:
I agree that the complaint in this case should be dismissed because the discussion was not "formal" within the meaning of § 7114(a)(2)(A) of the Statute. I write separately to address a different point that is present in this case; namely, the fact that the employee specifically told the Agency manager that he did not want the Union to attend the meeting at issue.
In NTEU v. FLRA, 774 F.2d 1181 (D.C. Cir. 1985), the D.C. Circuit stated the following:
[I]n the case of grievances arising out of alleged discrimination on the basis of race, religion, sex or national origin, Congress has explicitly decided that a conflict between the rights of identifiable victims of discrimination and the interests of the bargaining unit must be resolved in favor of the former. Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., provides that the right of an aggrieved employee to complete relief takes priority over the general interests of the bargaining unit. Similarly, a direct conflict between the rights of an exclusive representative under § 7114(a)(2)(A) and the rights of an employee victim of discrimination should also presumably be resolved in favor of the latter.
Id. at 1189 n.12 (citations omitted; emphasis in original).
In United States Dep't of the Air Force, Luke Air Force Base, Ariz., 58 FLRA 528 (2003) (Luke AFB), I referenced this portion of the court's decision and stated:
[W]here a direct conflict between a union's institutional rights and an employee's right to confidentiality in mediation and settlement discussions exists, I would be inclined to agree with the D.C. Circuit that the rights of the employee should presumably prevail. I note that such a direct conflict might arise in a variety of situations, including, for example, where an employee unequivocally requests that the exclusive representative not be present at a mediation session of a formal EEO complaint. Of course, a determination as to whether there is a direct conflict between the rights of an employee and the rights of a union requires an assessment of the facts presented in each case.
Id. at 538 (emphasis in original).
In this case, the employee unequivocally requested that the exclusive representative not be present at the meeting. In these circumstances, I would be inclined to agree with the D.C. Circuit that the rights of the employee should presumably prevail. However, because I agree that the "formality" requirement of § 7114(a)(2)(A) of the Statute has not been met in this case, I join in the dismissal of the complaint on that basis.
Dissenting opinion of Chairman Cabaniss:
I write separately to explain why I do not agree that the "formal discussion" argument is properly before the Authority in these exceptions. It is clear that the Respondent at one point in time raised as an affirmative defense the argument that no formal discussion took place here. However, not only did the Respondent not make any "formal discussion" argument in its Brief in Support of its Position to the Administrative Law Judge (ALJ), the Respondent expressly declared what issues were raised by this case, and neither of the two issues identified had anything to do with whether or not a formal discussion took place. Stipulation of Fact, paragraph 27, where the questions noted are whether there was a "direct" conflict created between the rights of the exclusive representative and the rights of the EEO complainant by the EEO complainant's objection to the exclusive representative's presence, and if so, how that conflict should be resolved. Moreover, that same paragraph earlier notes that "this case raises the unanswered issues set forth in [the two court cases underlying the two issues later set out in that paragraph]." When one examines the parts of the two court decisions cited to, the questions presented there have to do with the potential conflict between an EEO complainant and an exclusive representative, and not with whether there was a "formal discussion." And, the Stipulation of Fact goes on to expressly note that "[t]here is no other argument of any kind which varies, alters, or adds to this Stipulation of Fact." Stipulation of Fact, ¶ 28.
From these comments I conclude that the parties never litigated before the ALJ the issue of whether a "formal discussion" as defined by our precedent took place. Consequently, I would not set aside the ALJ's decision based upon a non-jurisdictional argument not presented to the ALJ for resolution. [ v61 p188 ]
Office of Administrative Law Judges
DEPARTMENT OF VETERANS AFFAIRS
NORTHERN ARIZONA VETERANS
AFFAIRS HEALTHCARE
PRESCOTT, ARIZONA
Respondent
and
AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 2401, AFL-CIO
Charging Party
Case No. DE-CA-04-0034
John R. Pannozzo, Jr.
For the General Counsel
Gregory Ferris
For the Respondent
Mary Garrison
For the Charging Party
Before: ELI NASH
Chief Administrative Law Judge
DECISION
Statement of the Case
The General Counsel of the Federal Labor Relations Authority (the Authority), by the Regional Director of the Denver Regional Office, issued a Complaint and Notice of Hearing on January 30, 2004, alleging that the Department of Veterans Affairs, Northern Arizona Veterans Affairs Healthcare, Prescott, Arizona (herein Respondent) through its Equal Employment Opportunity (EEO) Manager and Chief EEO Representative Sue Cox, violated section 7116(a)(1) and (8) of the Federal Service Labor-Management Relations Statute (herein Statute). Specifically, the Complaint alleges that on October 10, 2003, Respondent by Cox, conducted a formal discussion with unit employee Allen F. Perry, without affording the American Federation of Government Employee, Local 2401, AFL-CIO (herein the Charging Party or Union) an opportunity to be represented.
Respondent filed a Response, and thereafter, the parties entered into a Stipulation of Fact in lieu of a hearing and submitted a joint motion to transfer the matter to the Chief Administrative Law Judge. On June 7, 2004, the Stipulation of Fact and the joint motion were forwarded to the Chief Administrative Law Judge. Thereafter, on June 21, 2004, the Chief Administrative Law Judge issued an Order setting July 12, 2004, as the last day to postmarks briefs in this matter.
The parties agreed that the Stipulation of Fact, including 15 exhibits attached thereto constituted the entire record in the case and that no oral testimony was either necessary or desired by the parties.
A summary of the stipulated facts is as follows:
1. The Respondent is an agency under 5 U.S.C. section 7103(a)(3).
2. The Union is a labor organization under 5 U.S.C. section 7103(a)(4). The Union is the exclusive representative of a nationwide unit of employees appropriate for collective bargaining at the Agency, including Respondent. The Charging Party is an agent of the Union for the purpose of representing certain employees at Respondent's facility. A nationwide collective bargaining agreement between the Department of Veterans Affairs covers employees in a bargaining unit at Respondent's facility.
3. Susan Cox is Respondent's Equal Employment Opportunity (EEO) Manager and Chief EEO representative. Cox was a supervisor or management representative under 5 U.S.C. section 7103(a)(10) and/or (11) for Respondent. During the time period covered by the complaint Cox was acting on behalf of Respondent.
4. The Respondent's Equal Employment Opportunity Program is governed by the regulations of the Equal Employment Opportunity Commission (EEOC), 29 Code of Federal Regulations (CFR) 1616; the EEOC Settlement Authority policy in EEO MD 110, Chapter 12; and page 18, in the paragraph entitled Settlement Agreement, of the Department of Veterans Affairs, Office of Resolution Management, Standard Operating Procedures set forth the agency's policy concerning the settlement of EEO complaints whenever alternative dispute resolution (ADR) is not chosen by the EEO complainant.
5. The EEO complainant Allen F. Perry, on July 20, 2003, chose to have his complaint resolved through the agency's settlement policy, instead of entering the ADR program. Susan Cox was the Agency's management representative during the settlement process.
6. Under Article 42, section 3 of the Master agreement, an employee may file either a discrimination complaint under the statutory procedure (29 CFR Part 1614) or a grievance under the negotiated grievance [ v61 p189 ] procedure, but not both. Thus, EEO complaints are not included/not excluded from the parties' Grievance Procedure.
7. Perry is an employee in the bargaining unit at Respondent's facility.
8. On June 2, 2003, the Charging Party filed a grievance on behalf of Perry. The grievance did not allege a claim of discrimination, however. On June 17, 2003, Respondent issued a second step decision concerning the grievance. The Charging Party, through Local President Mary Garrison, did not pursue Perry's requested remedy of a temporary promotion to a Wage Grade (WG) position because Garrison believed it was an inappropriate remedy for the grievance based on the results of a desk audit.
9. Perry also initiated an EEO action with Respondent. On August 5, 2003, after Perry exhausted Respondent's informal EEO process, Respondent notified him that he had the right to file a formal EEO complaint. Thereafter, on August 21, 2003, Perry filed a formal EEO complaint with Respondent alleging continued harassment, religion and gender as the reasons for his discrimination claim. Respondent acknowledged the receipt of Perry's, formal EEO complaint on September 5, 2003.
10. On September 11, 2003, Perry made an oral settlement offer, through Cox, to Respondent to settle his EEO complaint. Specifically, Perry wanted a developmental position within Facilities Maintenance and Management Services, which was not in an over hire status. Further, Perry wanted a new and correct position description at the WG 9 level corresponding to this developmental position. Moreover, Perry requested that Respondent, through Cox, prepare a written EEO complaint settlement embodying the terms of his oral settlement offer.
11. On October 2, 2003, Respondent through Cox, presented Perry with a draft written EEO complaint settlement offer. The parties discussed the terms of the draft settlement offer. Perry made a few changes/modifications to the draft written offer and requested that Cox prepare the final EEO settlement agreement for the parties' execution.
12. On October 10, 2003, Cox telephoned Perry and asked that he to come to her office. The purpose of this meeting was for Respondent to present Perry with a final settlement proposal regarding his EEO matter. Respondent coordinated the date and time of the settlement session and made the location arrangements.
13. Cox advised Perry that the Union had a right to be present and Perry responded that he did not want the Union at the meeting. Cox requested that Perry handwrite a note stating that he did not want the Union present. Perry told Cox that it would look better if the note were typed and requested that Cox type the note. Cox agreed and drafted the first sentence of the note and Perry dictated the second sentence, which Cox typed. After Cox completed typing the note, Perry read the document, agreed with its contents and voluntarily signed the statement. Perry distrusted the union based on prior dealings.
14. The meeting between Cox and Perry began at 10:45a.m. and ended at 11:00a.m. During the meeting, Perry signed the agreement resolving/settling his pending EEO complaint. There was no discussion of the terms of the settlement as both parties were in agreement. There were no other Respondent officials at the meeting; attendance was voluntary and no notes were taken during the session. Although paragraph 4c of the parties' settlement contains a confidentiality provision, no confidentiality agreement was executed. The Charging Party was not provided notification of the October 10, 2003 meeting nor was a copy of the Settlement Agreement provided to the Union based on the confidentiality provision.
15. The settlement provided, in part, that Perry would be placed in a newly created WG 6 position as a Maintenance Worker in Facilities Maintenance and Management Services. Perry was previously a GS 6 Patient Support Assistant within Administrative Services of the Facilities Maintenance and Management Service. Respondent prepared a SF 50 concerning Perry's position move.
16. Cox followed her typical EEO resolution format in connection with Perry's settlement matter.
17. Cox informed Local President Garrison on October 17, 2003 that a settlement had been reached with an employee and that the employee had been moved from a GS to a WG position. The Union learned shortly thereafter that Perry was the employee reference in the October 17, 2003 email from Cox.
18. The parties agreed that a formal EEO complaint had been filed by Perry with Respondent prior to the October 10 EEO settlement session between Cox and Perry.
19. The parties stipulated that two issues were involved in this matter: (1) Whether Perry's objection to the Charging Party's presence during the EEO settlement discussion with Cox created a "direct" conflict [ v61 p190 ] between the rights of the exclusive representative under the Statute and the rights of Perry, the EEO complainant. (2) If a "direct" conflict did exist, should that conflict be resolved in favor of the complainant Perry or the exclusive representative in this matter.
Analysis and Conclusions
In order for a union to have the right to representation under §§7114(a)(2)(A), there must be (1) a discussion; (2) which is formal; (3) between a representative of the agency and a unit employee or the employee's representative; (4) concerning any grievance or any personnel policy or practice or other general condition of employment. Luke Air Force Base, Arizona, 54 FLRA 716 (1998), (herein "Luke I"); General Services Administration, 48 FLRA 1348, 1354 (1994) (GSA). The instant stipulation does not dispute that the Respondent engaged in a discussion within the meaning of §§7114(a)(2)(A), and, thus, it is unnecessary to address this requirement. Respondent also acknowledges the Authority's holding that EEO complaints filed under the EEOC's process are "grievances" under the Statute. Luke Air Force Base, Arizona, 58 FLRA 528 (2003) (Luke II); Luke Air Force Base, Arizona, 59 FLRA 16 (2003) (Luke III). It is also unnecessary to address this issue herein.
The basic issue in this case has been decided by the Authority and the Courts. Luke I, was reversed by the Ninth Circuit Court of Appeals in an unpublished decision, 208 F.3d 221 (9th Cir. 1999), cert. denied, 121 S.Ct. 60 (2000). Following Luke II the Authority decided a substantially similar case, U.S. Department of the Air Force, 436th Airlift Wing, Dover Air Force Base, Dover, Delaware, 57 FLRA 304 (2001), 316 F.3d 280 at 287, (Dover) (Chairman Cabaniss dissenting) and the majority adhered to its decision in Luke I, 54 FLRA at 716. As Respondent argues the 9th Circuit's decision "as to whether a complaint filed pursuant to EEOC procedures constitutes a "grievance" under section 7114(a)(2)(A)" precludes a union's right to attend an EEO settlement meeting. To date the Authority has not adopted the 9th Circuit's position and in fact has reaffirmed its position on the issue. Accordingly, I am constrained to follow Authority law as it exists.
Respondent acknowledges that neither the Authority nor the D.C. Circuit found a "direct" conflict between an individual employee and a Union in these EEO cases. Respondent argues nonetheless, that an exception to the Union's entitlement to representation at a formal discussion exists when an EEO complainant objects to the Union's presence, "as such objection raises a direct conflict between the complainant's individual rights and those of the Union under the Statute." Respondent thus believes that its failure to notify the Union of the meeting was justified.
Respondent maintains that Perry's specific objection to the Union's presence at his settlement discussions because "he distrusted the union based on his prior dealings" created a "direct" conflict. Respondent urges that this case does not present the "hypothetical" situation of "direct" conflict that has been previously rejected by the Authority and the Court. Respondent asserts that this matter presents a "direct" conflict that should be resolved in favor of the individual employee.
The General Counsel asserts that the Union's presence would not have created a "direct" conflict between the Union's rights and those of Perry, thereby making Respondent's failure to notify the Union of the meeting a violation of the Statute.
A. The Presence of a Union Representative at a Mediation or
Settlement Discussion of an EEO Complaint Would Not
Conflict with EEOC Regulations or the Confidentiality
Provisions of the ADR Act and Other Statutes.
Respondent believes that allowing a union representative to attend the mediation or settlement discussion of an EEO complaint would conflict with EEOC regulations and the confidentiality provisions of the ADR Act and other statutes. Respondent argues that this case does not involve a hypothetical situation as was found in previous cases, but that Perry's written objection offers the kind of evidence that actually presents a "direct" conflict between the interests of the union representative and those of the employee complainant. I disagree. The stipulation clearly reveals that Perry did not want the Union to attend the session and he took part in preparing a document stating this position. His reason, however, did not concern confidentiality but, distrust for the Union. Thus Perry never raised the issue of confidentiality and apparently was more concerned that the Union might disagree with his settlement with Respondent. This concern was clearly in play since the Union represented Perry beforehand on the very same issue in a grievance and there it opposed the remedy Perry was seeking. Garrison, the Union President representing Perry thought, based on the results of a desk audit, that the remedy sought by Perry was an inappropriate remedy for the grievance. Accordingly, Perry had every reason to be concerned that the Union would disagree that the EEO remedy was correct.
The Authority has previously rejected similar arguments regarding a "direct" conflict. Dover at 310;
[ v61
p191 ] Luke I at 732-33. First, the Authority held that the presence of a union representative at a mediation session of an EEO complaint would not conflict with EEO Regulations or the ADR Act. Second, the Authority has refused to address hypothetical problems arising in other cases. Dover at 310. As already noted, however, Respondent contends that this case warrants application of a "direct" conflict test that was suggested by Member Armenderiz and the D.C. Circuit. Even considering this language, it is still clear that the circumstances must show a "direct" and not "hypothetical" conflict. Neither Perry nor Respondent is claiming that the Union's presence would constitute a breach of confidentiality of the process. In Luke II the Authority plainly stated that the facts of that case did "not present any conflict, let alone a direct conflict, between the Union's institutional rights and the employee's right to confidentiality in mediation and settlement discussion. . ." In my view, this case is similar in that there is no showing in this record that the Union "would have objected to or failed to comply with any confidentiality requirements . . ." Dover AFB v FLRA, 316 F.3d at 287. While the undersigned does not disagree with Member Armenderiz and the Court that "where a direct conflict exists between a union's institutional rights and an employee's right to confidentiality in mediation and settlement discussions exists . . . the rights of the employee should presumably prevail", Luke II, confidentiality is not the question in this matter, however.
In this case the Union already had direct knowledge of Perry's case based on its representation of him during the grievance process. It was already privy to a desk audit, a questionnaire that was completed by Perry, Perry's performance standards and prior appraisal and the Grading Standards for a Sign Painter. In all that time, the Union had not revealed any confidential information regarding Perry.
Based on the stipulation, it would be difficult to conclude that the Union would not keep confidences, if allowed to attend the EEO mediation session. Again any argument by Respondent that the Union's attendance would have any effect on the parties settlement discussions, would, based on the stipulation, be nothing more than conjecture. The stipulation reveals that Perry did not want the Union intruding in his settlement of the EEO claim because he did not trust the Union. This claim that Perry's written objection to the Union's presence does not, in my opinion, create a "direct" conflict sufficient to excuse Respondent from notifying the Union of the impending mediation session with Perry. Thus the circumstances presented by the stipulation do not warrant a finding that the Union's presence at this session would conflict with either EEO regulations or the ADR Act. Furthermore, it should be noted that Perry's EEO claim based on discrimination presented a different claim than the grievance pursued for him by the Union. In short, the confidentiality considerations were clearly eclipsed based on Perry's prior grievance and the Union's involvement in that grievance. It is also not clear whether any statutorily protected information was discussed during the mediation but, it is clear that if the Union had been present, it would have been bound by the confidentiality provision in Paragraph 4.c. of the Settlement Agreement.
It is concluded, therefore, that the presence of a Union Representative at the mediation or settlement discussion in this case would not conflict with EEOC regulations or the confidentiality provisions of the ADR act and other statutes.
B. Whether Perry's objection to the Charging Party's presence
during the EEO settlement discussion with Cox created a
"direct" conflict between the rights of the exclusive
representative under the Statute and the rights of Perry, the
EEO complainant.
The Court of Appeals in the Dover case stated as follows: "We do not foreclose the possibility that an employee's objection to the union presence could create a `direct' conflict that should be resolved in favor of the employee as described in footnote 12, NTEU v FLRA, 774 F.2d 1189 n.12." There the Court said:
Congress has explicitly decided that a conflict between the rights of identifiable victims of discrimination and the interests of the bargaining unit must be resolved in favor of the former. Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., provides that the right of an aggrieved employee to complete relief takes priority over the general interests of the bargaining unit. See, e.g. Franks v. Bowman Transp. Co. 424 U.S. 747, 96 S.Ct. 1251, 47 L.Ed.2d 444 (1976).
In Dover the question of a direct conflict was never reached because the Respondent failed to show a conflict with the Authority's construction of section 7114(a)(2)(A). It appears that objective evidence is necessary to support any unsubstantiated concerns over a union's presence at a mediation session such as here. The question in this case then becomes whether Perry's written objection to the Union's presence is sufficient to create a direct conflict, thereby, justifying Respondent's [ v61 p192 ] failure to provide the Union with advance notice and an opportunity in this case to attend the mediation session.
A union is obligated under the Statute to represent the institutional interests of the bargaining unit. Dover at 309. In accordance with the ADR Act, a party includes those entitled as a matter of right to be admitted. Id. at 310. Also in Dover the Authority determined that the mediation session at issue was a formal discussion under section 7114(a)(2)(A) and therefore, the union had a statutory right to be admitted. Id. Alternatively, the Authority concluded, even if the union is not a party, the ADR Act contemplated the participation of nonparty participants in mediation sessions. Id. Since the right to be present at formal discussions under the Statute is a union right and is not dependent on the wishes of the employee, the Union, in this case, was a party to the mediation session and should have been afforded an opportunity to attend.
Under the circumstances, Perry's written objection to the Union's presence during the mediation session did not, in my opinion, create a "direct" conflict sufficient to exclude the Union from the meeting in this matter.
C. If a "direct" conflict did exist, should that conflict be resolved
in favor of the complainant Perry or the Union in this matter.
The General Counsel argues that even if a direct conflict exists in this case, it should be resolved in favor of the Union. In this regard, it is argued: that the Union has an interest in the fair treatment of all unit employees and any allegation of unfair treatment triggers that interest; the resolution of an individual discrimination complaint may well have an effect on other employees; and, finally that 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.
Even assuming that a direct conflict exists in this matter, it is my view, such a conflict should be resolved in favor of the Union. Again, I am not unmindful of the D.C. Circuit's and Member Armendariz' position that: ". . . a determination as to whether there is a direct conflict between the rights of an employee and the rights of a union requires an assessment of the facts presented in each case." Clearly, the totality of the facts and circumstances in each case must be considered in the context of formal discussions under section 7114(a)(2)(A). See U.S. Department of Justice, Immigration and Naturalization Service, New York Office of Asylum, Rosedale, New York, 55 FLRA 1032, 1038 (1999). When all the circumstances in this case are considered, it does not appear to the undersigned that Perry's desire not to have the Union attend this session did not amount to a "direct" conflict of the confidentiality provisions and therefore does not rise to the level of a "direct" conflict.
Several factors need to be considered when deciding whether a "direct" conflict should be resolved in favor of a Union. Clearly, the Union has a fundamental interest in the fair treatment of all bargaining unit employees and any allegation of unfair treatment triggering that interest. Further, the resolution of an individual discrimination complaint, such as here, may well have an effect on other employees. In this case, the Union believed that the remedy was inappropriate for the grievance based on the results of a desk audit. This remedy had the potential of decreasing opportunities for other employees, and is precisely the type of institutional problem in which an exclusive representative would have an interest. Additionally, determination regarding what constitutes an unjust employment action in one case may affect the rights and expectations of other employees in similar circumstances. Unions have an established interest in how allegations of discrimination are dealt with and resolved, regardless of the forum in which the employee chooses to lodge the complaint. See NTEU v FLRA, 774 F.2d at 1188.
Finally, the Union's presence during the EEO mediation session helps ensure that any settlement does not violate provisions of the parties' collective bargaining agreement. For example, an alleged discriminatee could receive preferential leave or shift assignment in violation of the seniority provisions of the agreement. Furthermore, the Union has the right to negotiate prior to implementation of a settlement agreement affecting bargaining unit employees. See March AFB at 396-397. Accordingly, the Union's attendance could possibly prevent subsequent implementation problems.
Here Perry was the only alleged victim of discrimina-tion as opposed to a number of individual employee victims. Compare Bowman Transportation.
In Dover the Authority observed that:
Both the United States Court of Appeals for the District of Columbia and the Authority have recognized that an appropriate resolution is required in the event of a direct conflict between individual and institutional rights. NTEU v. FLRA, 774 F.2d at 1189 n.12; see U.S. Dep't of Justice (Ray Brook, NY), 29 FLRA 584, 590 (1987) (if there is a conflict between rights under section 7114(a)(2)(A) and those under [ v61 p193 ] other statutes, we will consider that conflict in determining whether section 7114(a)(2)(A) has been violated), aff'd sub nom. AFGE, Local 3882 v. FLRA, 865 F.2d 1283 (D.C. Cir. 1989). Here, the Respondent does not assert that such a direct conflict exists.
Respondent differs in this case by asserting that a "direct" conflict does exist. It is my opinion, however, that the stipulation does not present sufficient reason or facts to persuade the undersigned that Perry's written statement created a "direct" conflict precluding the Union's presence in the mediation session.
In Dover the Authority agreed with the administrative law judge's finding that the facts of that case did not present any conflict, let alone a "direct" conflict between the union's institutional right and the employee's rights to confidentiality and settlement discussions. This is exactly the case here. Moreover, the Authority in all the cases it has examined on this issue has specifically concluded that the presence of a union representative at the mediation of an EEO complaint was not inconsistent with either the EEO regulations or the ADR Act, and therefore, no conflict existed. Finally, in Luke II the Authority rejected a claim that the union's presence at an EEO mediation session would violate the Privacy Act and therefore, found that it did not pose a "direct" conflict. Based on the foregoing, it is clear that the Authority does not consider claims of "direct" conflict as a defense in these EEO cases. Even if the Authority considered such defenses, it would be necessary to establish through specific evidence that such a conflict existed. The evidence in this case, in my view, is insufficient to support Respondent's assertion that it did not have to notify the Union that a discussion to mediate settlement of a formal EEO complaint filed by bargaining unit employees was about to take place.
Accordingly, it is concluded that the October 10, 2003 meeting between Cox and Perry concerned a "grievance" within the meaning of section 7114(a)(2)(A) of the Statute and by its failure to notify the Union and provide the Union an opportunity to be represented at this meeting, Respondent violated section 7116(a)(1) and (8) of the Statute and it is recommended that the Authority adopt the following:
ORDER
Pursuant to §2423.41(c) of the Rules and Regulations of the Federal Labor Relations Authority, 5 C.F.R. §2423.41(c), and section 7118 of the Federal Service Labor-Management Relations Statute, 5 U.S.C. §7118, the Department of Veterans Affairs, Northern Arizona Veterans Affairs Healthcare, Prescott, Arizona shall:
1. Cease and desist from:
(a) Failing or refusing to provide the American Federation of Government Employees, Local 2401, AFL-CIO, advance notice and the opportunity to be represented at formal discussions with bargaining unit employees concerning any grievance or any personnel policy or practices or other general conditions of employment, including discussions to mediate settlement of formal EEO complaints filed by bargaining unit employees.
(b) In any like or related manner, interfering with, restraining, or coercing employees in the exercise of rights assured to them by the Statute.
2. Take the following affirmative actions in order to effectuate the purposes of the Statute:
(a) Provide the American Federation of Government Employees, Local 2401, AFL-CIO advance notice and the opportunity to be represented at formal discussions with bargaining unit employees concerning any grievance or any personnel policy or practices or other general conditions of employment, including discussions to mediate settlement of formal EEO complaints filed by bargaining unit employees.
(b) Post at facilities at the Department of Veterans Affairs, Northern Arizona Veterans Affairs Healthcare, Prescott, Arizona, where bargaining unit employees represented by the American Federation of Government Employees, Local 2401, AFL-CIO, are located, copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt, such forms shall be signed by the Director, the Department of Veterans Affairs, Northern Arizona Veterans Affairs Healthcare, Prescott, Arizona, and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken to ensure that these Notices are not altered, defaced, or covered by any other material.
(c) Pursuant to §2423.41(e) of the Authority's Regulations, notify the Regional Director of the San Francisco Regional Office, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply.
Issued, Washington, DC, January 31, 2005.
________________________
ELI NASH
Chief Administrative Law Judge [ v61
p194 ]
NOTICE TO ALL EMPLOYEES
POSTED BY ORDER OF THE
FEDERAL LABOR RELATIONS AUTHORITY
The Federal Labor Relations Authority has found that the Department of Veterans Affairs, Northern Arizona Veterans Affairs Healthcare, Prescott, Arizona, has violated the Federal Service Labor-Management Relations Statute and has ordered us to post and abide by this notice.
We hereby notify employees that:
WE WILL NOT fail or refuse to provide the employees' exclusive representative, American Federation of Government Employees, Local 2401, AFL-CIO, advance notice and the opportunity to be presented at formal discussions with bargaining unit employees concerning any grievance or any personnel policy or practices or other general conditions of employment, including discussions to mediate settlement of formal EEO complaints filed by bargaining unit employees.
WE WILL NOT, in any like or related manner, interfere with, restrain, or coerce employees in the exercise of the rights assured by the Federal Service Labor-Management Relations Statute.
WE WILL provide the American Federation of Government Employees, Local 2401, AFL-CIO advance notice and the opportunity to be represented at formal discussions with bargaining unit employees concerning mediation of formal EEO complaints.
________________________
(Agency)
Dated: _______ By: ___________________________
(Signature) (Title)
This Notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material.
If employees have any questions concerning this Notice or compliance with its provisions, they may communicate directly with the Regional Director, San Francisco Regional Office, whose address is: Federal Labor Relations Authority, 901 Market Street, Suite 220, San Francisco, CA 94103-1791, and whose telephone number is: 415-356- 5002.
Footnote # 1 for 61 FLRA No. 36 - Authority's Decision
Member Armendariz' concurring opinion and Chairman Cabaniss' dissenting opinion are set forth at the end of this decision.
Footnote # 2 for 61 FLRA No. 36 - Authority's Decision
The note states the following:
[The] EEO Manager has informed me that the [Charging Party] has a right to be involved in the formal settlement meeting of my EEO Case because I am a bargaining unit employee.
I do not have [n]or do I want union representation from [the Charging Party] regarding this issue and I do not want [the Charging Party] to be involved in the formal meeting concerning the settlement of my EEO Case.
Exh. 11.
Footnote # 3 for 61 FLRA No. 36 - Authority's Decision
As the parties do not contest the Judge's failure to decide whether the discussion was between an agency representative and a unit employee and, as previously noted, the Respondent admitted in its answer that it was, we do not address the issue further. See Complaint ¶ 11-13 and Answer ¶ 11-13.
Footnote # 4 for 61 FLRA No. 36 - Authority's Decision
As relevant here, paragraph 27 of the parties' stipulation of facts provides that:
The parties further stipulate that this case raises the [following] unanswered issues . . . :
A. Whether [the EEO complainant's] objection to the Charging Party's presence during the EEO settlement discussion . . . created a "direct" conflict between the rights of the exclusive representative . . . and the rights of . . . the EEO complainant?
B. If a "direct" conflict existed, should that conflict be resolved in favor of [the] EEO complainant . . . or the Charging Party, the exclusive representative of the employees?
In relevant part, paragraph 28 of the parties' stipulation of facts provides that "[t]here is no other argument of any kind which varies, alters, or adds to this [s]tipulation of [f]act."
Footnote # 5 for 61 FLRA No. 36 - Authority's Decision
Although the parties stipulated that the EEO manager "followed her typical EEO resolution format in connection with [the employee's] settlement matter[,]" the record does not identify that format. Judge's Decision at 5.
Footnote # 6 for 61 FLRA No. 36 - Authority's Decision
There is no allegation that these prior meetings constituted formal discussions.
Footnote # 7 for 61 FLRA No. 36 - Authority's Decision
Because we conclude that the meeting was not a formal discussion within the meaning of the Statute, it is unnecessary to consider the Respondent's other exceptions.