Federal Aviation Administration, Airways Facilities Division, Northwest Mountain Region, Renton, Washington (Respondent) and Professional Airways Systems Specialists, AFL-CIO (Charging Party) (Authority decision, April 11, 2005)

Read the official release (flra.gov)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority in an unfair labor practice case under 5 U.S.C. § 7118. An aggrieved person may seek judicial review by filing a petition in an appropriate United States court of appeals within 60 days after issuance under 5 U.S.C. § 7123(a). The Authority resolves the violation and modifies the remedial order.

Plain-English summary

FAA managers met with a bargaining unit employee and her attorney to mediate a formal EEO complaint without notifying the union or offering it a chance to attend. An administrative law judge found that the mediation sessions were formal discussions about a grievance and that the FAA violated the union's statutory representation right. The Authority upheld that finding, reaffirming its view that a formal EEO complaint is a grievance for this purpose. It expanded the remedy to specify advance union notice and an opportunity to attend future formal discussions, including EEO mediations. Chairman Cabaniss dissented, concluding that the EEO mediation was outside the formal discussion provision.

Decision snapshot

• Authority: 5 U.S.C. §§ 7114(a)(2)(A), 7116(a)(1), 7116(a)(8), and 7118.
• Outcome: Unfair labor practice finding upheld; notice and posting remedy modified.
• Key point: The Authority treated formal EEO mediation as a grievance discussion requiring advance union notice and an opportunity to attend.

Full text (FLRA public release)

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60 FLRA No. 155

FEDERAL AVIATION ADMINISTRATION

AIRWAYS FACILITIES DIVISION

NORTHWEST MOUNTAIN REGION

RENTON, WASHINGTON

(Respondent)

and

PROFESSIONAL AIRWAYS SYSTEMS

SPECIALISTS, AFL-CIO

(Charging Party)

SF-CA-04-0200

_____

DECISION AND ORDER

April 11, 2005

_____

Before the Authority: Dale Cabaniss, Chairman, and

Carol Waller Pope and Tony Armendariz, Members [n1]

I. Statement of the Case

This unfair labor practice case is before the Authority on exceptions to the attached decision of the Administrative Law Judge filed by the Respondent. The General Counsel also filed cross-exceptions and an opposition.

The complaint alleges that the Respondent violated § 7116(a)(1) and (8) of the Federal Service Labor-Management Relations Statute (the Statute) by holding formal discussions over a grievance with a member of the bargaining unit without providing the Union with notice of the discussion or the opportunity to attend as required by § 7114(a)(2)(A) of the Statute. [n2]

Upon consideration of the Judge's decision and the entire record, we adopt the Judge's findings, conclusions and recommended Order, as modified, for the reasons set forth below.

II. Background and Judge's Decision

A unit employee filed a formal Equal Employment Opportunity (EEO) complaint with the Equal Employment Opportunity Commission (EEOC). Judge's Decision at 2. Subsequently, the employee and her attorney met with two supervisors and two mediators, among others, to discuss resolving a portion of the formal complaint. Id. at 2, 3. A similar meeting took place a month later where the complaint was resolved in a settlement agreement. Id.

After resolving the EEO complaint, the employee notified a Union representative that she had resolved her complaint and that unit employees may "see[] some changes." Id. at 3. The employee did not inform the Union of the specifics of the settlement. Id.

Subsequently, the Union filed a charge, which was later amended, claiming that the Respondent had committed an unfair labor practice. The General Counsel, thereafter, issued a compliant alleging that the Respondent held formal discussions with a member of the bargaining unit without providing the Union with notice of the discussions or the opportunity to attend as required by § 7114(a)(2)(A) of the Statute. Judge's Decision at 1. After the complaint was issued, the General Counsel filed a motion for summary judgement to which the Respondent filed no opposition. Id. at 2. The Judge granted the motion and found for the General Counsel. The facts relied upon by the Judge in granting this motion were stipulated to by the parties.

The Judge determined that the mediation sessions were in fact "formal discussions concerning a grievance." Id. at 4, 5 (citing United States Dep't of the Air Force, Luke Air Force Base, Ariz., 58 FLRA 528 (2003) (Luke II) (Chairman Cabaniss dissenting); Dep't of the Air Force, 436th Airlift v. FLRA, 316 F.3d 280 (D.C. Cir. 2003) (436th Airlift), aff'g United States Dep't of the Air Force, 436th Airlift Wing, Dover Air Force Base, Dover, Del., 57 FLRA 304 (2001) (Dover) (Chairman Cabaniss dissenting)). As such, the Judge found under Luke II that the Union had the right to notification of, and to be present at, the mediation session. Judge's Decision at 6. Accordingly, as the Respondent did not notify the Union of the opportunity to attend the session, the Judge determined that the Respondent violated § 7114(a)(2)(A) of the Statute and thereby committed unfair labor practices in violation of § 7116(a)(1) and (8) of the Statute. Id. at 6, 7.

In fashioning a remedy, the Judge adopted in part and rejected in part the General Counsel's proposed order. The Judge determined that the order should not [ v60 p820 ] require specifically the Respondent to notify the Union of the opportunity to attend EEO meetings as an employee may request that the Union not attend. The Judge also excluded from the order a "reference to discussions regarding personnel policies or practices or other general conditions of employment . . . ." Id. at 6.

III. Respondent's Exceptions

The Respondent excepts to the Judge's finding that the meetings at issue concerned a "grievance" within the meaning of § 7114(a)(2)(A). The Respondent argues that Luke Air Force Base v. FLRA, 208 F.3d 221 (9th Cir. 1999) (Luke), cert. denied, 531 U.S. 819 (2000), is directly on point, and that the court there held that an EEO settlement "meeting was not a formal discussion because it did not concern a `grievance' as that term is used in 5 USC [§] 7114(a)(2)(A)." Exceptions at 1. As such, the Respondent contends that in the absence of a formal discussion the Union has no right of representation. Id.

The Respondent also argues that where an employee "elects to pursue an EEO complaint pursuant to a statutory appeals procedure under [§] 7121(d), the EEO complaint is no longer considered a grievance' under the Statute for purposes of [§] 7114(a)(2)(A)." Id. at 2. Furthermore, the Respondent states that the legislative history "of [§] 7103(a)(9) contradicts the broad interpretation ofgrievance' adopted by the [Authority] and strengthens our position that the term grievance is limited to complaints arising under the negotiated grievance procedure and not to claims pursued under a statutory procedure after a [§] 7121(d) election." Exceptions at 3. Additionally, the Respondent notes that the majority should adopt the Chairman's dissenting view in Dover, 57 FLRA at 312, finding that the definition of grievance does not include formal EEO complaints. Exceptions at 3-4. Finally, the Respondent argues that the actual settlement agreement was personal to the complainant and did not affect any personnel policy, practice or working condition for any other member of the bargaining unit. Id. at 2.

IV. General Counsel's Opposition and

Cross-Exception

In its opposition, the General Counsel (GC) argues, as relevant here, that the Respondent's reliance on Luke, 208 F.3d 221, is misplaced. In this respect, the GC states that Luke II is controlling and that under it the Authority has determined "`an EEOC complaint by a bargaining unit member against an employing agency comes within the meaning of the definition' of grievance under the Statute" and "thus mediation sessions concerning EEO complaints constitute formal discussions under § 7114(a)(2)(A) of the Statute." Opposition at 6 (citing Luke II, 58 FLRA at 553).

In its cross-exception, the GC argues that the Judge's recommended order is inconsistent with Authority precedent because it does not require the Respondent to provide the Union with notice and an opportunity to be present when discussing future EEO complaints. Opposition at 11 (citing Luke Air Force Base, Ariz., 54 FLRA 716 (1998) (Luke I); Luke II; Dover; and Marine Corps Logistics Base, Barstow, Cal., 52 FLRA 1039 (1997) (Marine Corps)). Moreover, the GC contends that the Judge also erred by "removing reference to the remainder of § 7114(a)(2)(A) since as he reasoned the discussions in this case involved only grievances, not personnel policies or practices or other general conditions of employment." Id. at 12. In support of its arguments, the GC notes that in similar cases the Authority has included "specific language referring to the agency's obligation to provide advance notice to the exclusive representative when formal discussions are to take place, including mediation of formal EEO complaints." Id. (citing Luke II, 58 FLRA at 536-37; Dover, 57 FLRA at 310-11; Luke I, 54 FLRA at 734-35; and Marine Corps, 52 FLRA at 1048-49) (emphasis in original).

Finally, the GC contends that "the ALJ removed portions of § 7114(a)(2)(A) from the Order and Notice to All Employees, which is standard language to be included when a formal discussion violation is found." Id. at 14.

V. Preliminary Matter

Section 2429.5 of the Authority's Regulations provides that "[t]he Authority will not consider . . . any issue, which was not presented in the proceedings before the . . . Administrative Law Judge[.]" 5 C.F.R. 2429.5. We find that § 2429.5 bars our consideration of the Respondent's claims that were not raised before the Judge. In this respect, the Respondent did not file an opposition to the General Counsel's motion for summary judgement and, in its answer to the complaint, denied that it had committed an unfair labor practice by merely citing Luke, 208 F.3d 221. As such, we will limit our consideration to the Respondent's arguments concerning Luke.

VI. Analysis and Conclusions

A. The Mediation Concerned a "Grievance"

In order for a union to have the right to representation under § 7114(a)(2)(A), there must be: (1) a discussion; [ v60 p821 ] (2) which is formal; (3) between a representative of the agency and a unit employee or the employee's representative; (4) concerning any grievance or any personnel policy or practice or other general condition of employment. Luke II, 58 FLRA at 531; Dover, 57 FLRA at 306; Luke I, 54 FLRA at 723; Gen. Servs. Admin., Region 9, 48 FLRA 1348, 1354 (1994). Here, the Respondent challenges the Judge's decision that the Ninth Circuit's decisions in Luke and IRS, Fresno Serv. Ctr. v. FLRA, 706 F.2d 1019 (9th Cir. 1983), should not be controlling in this case.

In Dover and Luke II, the Authority revisited and thoroughly reviewed the issue of whether EEO complaints pursued through a statutory appeals procedure are grievances under § 7114(a)(2)(A) and adhered to its view that "the scope of the term `grievance' encompasses such complaints, based on the express language of the Statute, the legislative history of the Statute, and the purpose of the Statute's provision for union representation under § 7114(a)(2)(A)." Luke II, 58 FLRA at 533; see Dover, 57 FLRA at 308-09. Moreover, in Luke II the Authority noted the decision in 436th Airlift, 316 F.3d 280, in which the D.C. Circuit rejected the Ninth Circuit's precedent and reaffirmed its decision in NTEU v. FLRA, 774 F.2d 1181 (D.C. Cir. 1985), that "grievance" encompasses complaints filed pursuant to a negotiated grievance procedure and those filed pursuant to alternative statutory procedures. Luke II, 58 FLRA at 533 (citing 436th Airlift, 316 F.3d at 285-86.)

Based on the above, the Judge correctly applied Luke II, and found that the Respondent violated the Statute by holding formal discussions over a grievance with a member of the bargaining unit without providing the Union with notice of the discussion or the opportunity to attend as required by § 7114(a)(2)(A). For the reasons set forth in those decisions, we respectfully disagree with the Ninth Circuit's determination that the formal discussion right under § 7114(a)(2)(A) does not apply to complaints filed under EEOC's statutory procedure. See Luke II, 58 FLRA at 533. Accordingly, we reaffirm that the term "grievance" under § 7114(a)(2)(A) includes formal EEO complaints and mediation sessions over those complaints and deny the Respondent's exception. See Luke II, 58 FLRA at 533-34.

B. We Modify the Judge's Notice and Order

The Authority has defined the broad objectives that an unfair labor practice remedy should be designed to serve. In this respect, the Authority has determined that "remedies for unfair labor practices under the Statute should, like those under the NLRA, be `designed to recreate the conditions and relationships that would have been had there been no unfair labor practice.'" United States Dep't of Justice, Bureau of Prisons, Safford, Ariz., 35 FLRA 431, 444-45 (1990) (BOP, Safford) (quoting Local 60, United Bhd. of Carpenters & Joiners v. NLRB, 365 U.S. 651, 657 (1961) (Harlan, J., concurring)); see also Dep't of Def. Dependents Schools, 54 FLRA 259, 269 (1998)). The Authority further stated that remedies should be designed to "restore, so far as possible, the status quo that would have obtained but for the wrongful act." BOP, Safford, 35 FLRA at 445 (quoting NLRB v. J.H. Rutter-Rex Mfg. Co., 396 U.S. 258, 265 (1969)). In addition, the Authority has noted that although the deterrence of future violative conduct is not in itself the principal objective of a remedial order, it "is also certainly a desirable effect[.]" Id.; see also F.E. Warren Air Force Base, Cheyenne, Wyo., 52 FLRA 149, 160 (1996).

Consistent with the foregoing, the Authority has routinely included in orders in similar cases a statement requiring an agency to acknowledge that it will provide an exclusive representative advance notice and the opportunity to be represented at grievances including "meetings to mediate settlement of formal EEO complaints[.]" Luke II, 58 FLRA at 536; Dover, 57 FLRA at 311; Luke I, 54 FLRA at 734. We believe it is appropriate to set forth this level of detail in this Order to ensure that the Respondent avoids committing a similar unfair labor practice in the future.

Additionally, and also consistent with the foregoing, we modify the Judge's Order to include a reference to discussions regarding not only grievances but also "personnel policies or practices or other general conditions of employment[.]" Judge's Decision at 6. In this regard, as we have routinely included this language in previous decisions with similar facts, we find that excluding such language may serve to only create confusion as to the Respondent's general obligations under the Statute. See Dover, 57 FLRA at 310.

VII. Order

Pursuant to section 2423.41 of our Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, the Federal Aviation Administration, Airways Facilities Division, Northwest Mountain Region, Renton, Washington shall:

1. Cease and desist from:

(a) Failing or refusing to provide the Professional Airways Systems Specialists, AFL-CIO, advance notice and the opportunity to be represented at formal discussions with bargaining unit employees concerning any grievance or any personnel policy or practices [ v60 p822 ] or other general conditions of employment, including discussions to mediate settlement of formal EEO complaints filed by bargaining unit employees.

(b) In any like or related manner, interfering with, restraining, or coercing employees in the exercise of rights assured to them by the Statute.

2. Take the following affirmative actions in order to effectuate the purposes of the Statute:

(a) Provide the Professional Airways Systems Specialists, AFL-CIO, advance notice and the opportunity to be represented at formal discussions with bargaining unit employees including mediation of formal Equal Employment Opportunity complaints.

(b) Post at the Spokane Systems Support Center, where employees in the bargaining unit are located, copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the Spokane Systems Support Center Supervisor, and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to ensure that these Notices are not altered, defaced, or covered by any other material.

(c) Pursuant to § 2423.41(e) of the Authority's Regulations, notify the Regional Director, San Francisco Regional Office, Federal Labor Relations Authority, 901 Market Street, Suite 220, San Francisco, California 94103-1791, in writing, within 30 days of this Order, as to what steps have been taken to comply.

NOTICE TO ALL EMPLOYEES

POSTED BY ORDER OF THE

FEDERAL LABOR RELATIONS AUTHORITY

The Federal Labor Relations Authority has found that the Federal Aviation Administration, Airways Facilities Division, Northwest Mountain Region, Renton, Washington, violated the Federal Service Labor-Management Relations Statute and has ordered us to post and abide by this notice.

WE HEREBY NOTIFY EMPLOYEES THAT:

WE WILL NOT fail or refuse to provide the employees' exclusive representative, the Professional Airways Systems Specialists, AFL-CIO, advance notice and the opportunity to be represented at formal discussions with bargaining unit employees concerning any grievance or any personnel policy or practices or other general conditions of employment, including meetings to mediate settlement of formal Equal Employment Opportunity complaints filed by bargaining unit employees.

WE WILL NOT, in any like or related manner, interfere with, restrain, or coerce our employees in the exercise of the rights assured by the Federal Service Labor-Management Relations Statute.

WE WILL provide the Professional Airways Systems Specialists, AFL-CIO, advance notice and the opportunity to be represented at formal discussions with bargaining unit employees including mediation of formal Equal Employment Opportunity complaints.

_____

(Activity)

Date:__ 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 any of its provisions, they may communicate directly with the Regional Director, San Francisco Regional Office, Federal Labor Relations Authority, 901 Market Street, Suite 220, San Francisco, California 94103-1791 and whose phone number is: (415) 356-5000.

File 1: Authority's Decision in 60
FLRA No.
155

File 2: Opinion of Chairman Cabaniss

File 3: ALJ's Decision

Footnote # 1 for
60
FLRA No. 155

• Authority's Decision

Chairman Cabaniss' dissenting opinion is set forth at the end of this decision.

Footnote # 2 for
60
FLRA No. 155

• Authority's Decision

Section 7114(a)(2)(A) states that an exclusive representative of an appropriate unit in an agency shall be given the opportunity to be represented at "any formal discussion between one or more representatives of the agency and one or more employees in the unit or their representatives concerning any grievance or any personnel policy or practices or other general condition of employment."

Separate opinion of Chairman Cabaniss (official HTML attachment)

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Dissenting Opinion of Chairman Cabaniss:

Consistent with my dissent in United States Dep't of the Air Force, Luke Air Force Base, Ariz., 58 FLRA 528, 538 (2003), I would dismiss the complaint in this case as not involving a formal discussion under § 7114(a)(2)(A), and therefore dissent from the majority decision here. Moreover, to the extent that the Respondent's other legal arguments supporting its position that an EEO complaint does not constitute a "grievance" under § 7114(a)(2)(A) are before the Authority, I reiterate the views set out in my dissent in United States Dep't of the Air Force, 436th Airlift Wing, Dover Air Force Base, Dover, Del., 57 FLRA 304, 312-14 (2001). [*]

File 1: Authority's Decision in 60 FLRA No. 155

File 2: Opinion of Chairman Cabaniss

File 3: ALJ's Decision

Footnote * for
60
FLRA No. 155

• Opinion of Chairman Cabaniss

I note that the General Counsel only raised 5 C.F.R. § 2429.5 for the purpose of limiting the Respondent's contentions pertaining to the parties' negotiated agreement, not with respect to its remaining legal arguments pertaining to the statutory definition of a "grievance" under § 7114(a)(2)(A). Opposition at 9.

Administrative law judge decision (official HTML attachment)

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Office of Administrative Law Judges

FEDERAL AVIATION ADMINISTRATION

AIRWAYS FACILITIES DIVISION

NORTHWEST MOUNTAIN REGION

RENTON, WASHINGTON

Respondent

and

PROFESSIONAL AIRWAYS SYSTEMS

SPECIALISTS, AFL-CIO

Charging Party

Case No. SF-CA-04-0200

Amita Baman Tracy

For the General Counsel

Kirsten Crawford

For the Respondent

Before: PAUL B. LANG

Administrative Law Judge

DECISION ON MOTION

FOR SUMMARY JUDGMENT

Statement of the Case

On December 31, 2003, the Professional Airways Systems Specialists, AFL-CIO (Union) filed an unfair labor practice charge against the Federal Aviation Administration, Airways Facilities Division, Northwest Mountain Region, Renton, Washington (Respondent). On April 30, 2004, the Union filed an amended charge against the Respondent. On April 30, 2004, the Regional Director of the San Francisco Region of the Federal Labor Relations Authority (Authority) issued a Complaint and Notice of Hearing in which it was alleged that, on September 22, 2003, and October 22, 2003, the Respondent held formal discussions with a member of the bargaining unit represented by the Union. It was further alleged that the discussions concerned a grievance by the bargaining unit member, that the Respondent failed to provide the Union with notice of the discussions or an opportunity to attend as required by §7114(a)(2)(A) of the Federal Service Labor-Management Relations Statute (Statute) and that the Respondent thereby committed unfair labor practices in violation of §7116(a)(1) and (8) of the Statute.

A hearing was originally scheduled in Spokane, Washington on June 11, 2004. The hearing was subsequently postponed to August 27, 2004, and was then indefinitely postponed pending consideration of the motion for summary judgment which was filed by the [ v60 p824 ] General Counsel on July 19, 2004. The Respondent has neither responded to the motion nor requested an extension of the deadline for doing so. [n1]

Findings of Fact

An examination of the Respondent's Answer to the Complaint indicates that the following facts are undisputed:

1. The Respondent is an agency as defined in §7103(a)(3) of the Statute (Complaint and Answer, ¶2).

2. The Union is a labor organization as defined in §7103(a)(4) of the Statute and is the exclusive representative of a unit of the Respondent's employees which is appropriate for collective bargaining (Complaint and Answer, ¶3).

3. On or about September 22, 2003, the Respondent, through George Baty and Dee Knapp, each of whom was a supervisor, representative or management official of the Respondent, held a meeting with a member of the bargaining unit during which the Respondent discussed the resolution of a portion of the employee's pending formal complaint to the Equal Employment Opportunity Commission (EEOC) (Complaint and Answer, ¶¶7 through 12).

4. On or about October 22, 2003, the Respondent, through Baty, Knapp and David Hainline, who was also a representative of the Respondent, held another meeting with the same employee. At that meeting, the Respondent discussed the resolution of the employee's pending formal complaint to the EEOC and resolved the complaint (Complaint and Answer, ¶¶7 through 10, 13, 14).

5. The meetings of September 22 and October 22, 2003 were held without affording the Union an opportunity to be represented (Complaint and Answer, ¶¶17, 18).

The following facts are established by the affidavits of Janice Tewel, who was then the cognizant Union representative, and Cindy Lundberg both of which were submitted by the General Counsel along with the motion for summary judgment:

1. Lundberg is a member of the bargaining unit. She filed a formal complaint against the Respondent in late 2002 or early 2003.

2. Prior to the scheduled hearing on her complaint Lundberg engaged in alternate dispute resolution (ADR) with the Respondent. She attended an ADR meeting on September 22, 2003. The meeting was arranged several weeks in advance between Lundberg's private attorney and an attorney for the Respondent. Also present, besides Lundberg, her husband and her attorney, were Baty, Knapp (Lundberg's second line supervisor) and two mediators. The meeting lasted from 10½ to 11 hours and culminated in the preparation of a settlement agreement which was signed by Baty; Lundberg signed the agreement 12 days later. The agreement provided for another mediation session within 60 days to address additional workplace issues.

3. Lundberg and her attorney attended a second mediation session on October 22, 2003. Baty, Knapp and Hainline (Lundberg's first line supervisor) also attended along with the two mediators. The meeting lasted for 6 hours during which an additional written agreement was drafted. The agreement was signed by Lundberg, her attorney, Knapp, Hainline and the mediators. After this meeting Lundberg's formal complaint to the EEOC was resolved.

4. After the meetings Lundberg informed Tewel that the meetings had resolved her complaint to the EEOC. She further informed Tewel that bargaining unit employees might be "seeing some changes". Lundberg did not inform Tewel of the details of the agreements because of the terms of the settlement. [n2]

5. Tewel had no prior notice of the two meetings. She was the representative who would have received such notice on behalf of the Union.

Discussion and Analysis

The Applicable Law

The Authority has held that, in considering motions for summary judgment, it will apply the criteria used by federal courts in considering motions filed pursuant to Rule 56 of the Federal Rules of Civil Procedure, Department of Veterans Affairs, Veterans Affairs Medical Center, Nashville, Tennessee, 50 FLRA 220, 222 (1995). Rule 56(c) provides that summary judgment is to be "rendered forthwith if the pleadings . . . and admissions on file, together with the affidavits, if any, show [ v60 p825 ] that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law".

§7114(a) of the Statute 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 . . . .

The Mediation Sessions Were Formal Discussions Concerning a Grievance

In its Answer the Respondent has denied that the two mediation sessions were formal discussions. In support of its position the Respondent has cited Luke Air Force Base v. F.L.R.A., 208 F.3d 221 (9th Cir. 1999) (issued without a published opinion) in which the court reversed the decision of the Authority in Luke Air Force Base, Arizona, 54 FLRA 716, 723 (1998) (Luke I). In that decision the Authority held that the mediation of an EEOC complaint was a formal discussion and that the complaint itself was a grievance within the meaning of §7114(a)(2)(A) of the Statute.

It is unclear whether the 9th Circuit rejected all or only a part of the Authority's rationale. In any event, in United States Department of the Air Force, Luke Air Force Base, Arizona, 58 FLRA 528, 533 (2003) (Luke II) the Authority reaffirmed the rationale of Luke I and rejected the proposition that the decision of the 9th Circuit was controlling. In support of its conclusion the Authority reviewed the legislative history of the Statute and cited Department of the Air Force, 436th Airlift v. F.L.R.A., 316 F.3d 280 (D.C. Cir. 2003) (436th Airlift) in which the court enforced the decision in U.S. Department of the Air Force, 436th Airlift Wing, Dover Air Force Base, Dover, Delaware, 57 FLRA 304 (2001) (Dover). In Dover the Authority again held that the mediation of an EEOC complaint was a formal discussion which concerned a grievance. In view of the holdings of the Authority in Dover and Luke II, the Respondent's reliance on the 9th Circuit decision is misplaced.

In Luke II the Authority confirmed that the right of a union to be present at a meeting is dependent upon whether (a) the meeting is a discussion, (b) the discussion is formal, (c) the discussion is between representatives of an agency and either a bargaining unit employee or the representative of that employee, and (d) whether the discussion concerns a grievance or any personnel policy or practice or other general condition of employment, 58 FLRA at 531. The undisputed evidence indicates that each of those elements is present in this case.

In Luke I (the rationale of which was reaffirmed in Luke II) the Authority recognized that the terms "meeting" and "discussion" are synonymous and that a mediation session is formal even though it involves two-way discussion. In Luke II the Authority held that the formality of a mediation session is not affected by the fact that mediators are not representatives of the agency so long as responsible agency representatives are also present, 58 FLRA at 533.

It is clear that Lundberg and her attorney as well as one or more of the Respondent's representatives were present at each of the mediation sessions, thus satisfying the third element of the Luke II test. In Luke II the Authority held that, in view of the legislative history of the Statute, the definition of a "grievance" is not dependent upon the scope of the contractually negotiated grievance procedure, and that an EEOC complaint by a bargaining unit member against an employing agency comes within the meaning of the definition, 58 FLRA at 533. [n3]

As shown above, all of the necessary elements described in Luke II were present in the mediation sessions which are at issue in this case. Therefore, the Respondent was obligated under §7114(a)(2)(A) of the Statute to provide the Union with advance notice of each of the sessions and an opportunity to attend. [n4]

The Remedy

The General Counsel has submitted a proposed order which includes the requirement that the Respondent provide the Union with advance notice of meetings to mediate formal complaints by bargaining unit [ v60 p826 ] employees to the EEOC. Such a requirement would be appropriate to this case where Lundberg did not object to the presence of a Union representative. However, the Authority has not yet been presented with a case in which the employee concerned has raised such an objection. However, in 436th Airlift, 316 F.3d at 287 the court indicated that the employee's objection to the union's presence would create a direct conflict which should be resolved in favor of the employee. See also, National Treasury Employees Union v. F.L.R.A., 774 F.2d 1181, 1189, n.12 (D.C. Cir. 1985).

In anticipation of the future resolution of this issue by the Authority, and in order to avoid the possibility of future conflicts with such a resolution and the consequent interference with the rights of employees, I have modified the proposed order so as to exclude a specific reference to discussions concerning formal complaints to the EEOC. I have also excluded the reference to discussions regarding personnel policies or practices or other general conditions of employment because such discussions were not at issue in this case.

For the reasons set forth herein I have concluded that the Respondent committed unfair labor practices in violation of §7116(a)(1) and (8) of the Statute by failing to provide the Union with notice of the mediation sessions of September 22 and October 22, 2003, and by failing to afford the Union the opportunity to attend the sessions. Accordingly, I recommend that the Authority adopt the following Order:

ORDER

IT IS HEREBY ORDERED that the motion of the General Counsel for summary judgment be, and hereby is, granted.

IT IS FURTHER ORDERED, pursuant to §2423.41(c) of the Rules and Regulations of the Authority and §7118(a)(7) of the Federal Service Labor-Management Relations Statute (Statute), that the Federal Aviation Administration, Airways Facility Division, Northwest Mountain Region, Renton, Washington shall:

1. Cease and desist from:

(a) Failing and refusing to provide the Professional Airways Systems Specialists, AFL-CIO (Union) with advance notice and the opportunity to be represented at formal discussions with bargaining unit employees or their representatives concerning grievances.

(b) In any like or related manner, interfering with, restraining or coercing its employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.

2. Take the following affirmative action:

(a) Provide the Union with advance notice and the opportunity to be represented at formal discussions with bargaining unit employees or their representatives concerning grievances.

(b) Post at Spokane Systems Support Center, where bargaining unit employees are located, copies of the attached Notice on forms to be furnished by the Authority. Upon receipt of such forms they shall be signed by the Supervisor, and shall be posted and maintained for 60 consecutive days thereafter in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to ensure that such Notices are not altered, defaced or covered by any other material.

(c) Pursuant to § 2423.41(e) of the Rules and Regulations of the Authority, notify the Regional Director of the San Francisco Region, Federal Labor Relations Authority, in writing, within 30 days of the date of this Order, as to what steps have been taken to comply.

Issued, Washington, DC, September 15, 2004

____

PAUL B. LANG

Administrative Law Judge

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NOTICE TO ALL EMPLOYEES

POSTED BY ORDER OF

THE FEDERAL LABOR RELATIONS AUTHORITY

The Federal Labor Relations Authority has found that the Federal Aviation Administration, Airway Facilities Division, Northwest Mountain Region, Renton, Washington, violated the Federal Service Labor-Management Relations Statute and has ordered us to post and abide by this Notice.

WE HEREBY NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT fail and refuse to provide the Professional Airways Systems Specialists, AFL-CIO with advance notice and the opportunity to be represented at formal discussions with bargaining unit employees or their representatives concerning grievances.

WE WILL NOT, in any like or related manner, interfere with, restrain or coerce our employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.

WE WILL provide the Professional Airways Systems Specialists, AFL-CIO with advance notice and the opportunity to be represented at formal discussions with bargaining unit employees or their representatives concerning grievances.

_____

(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.

File 1: Authority's Decision in 60 FLRA No. 155

File 2: Opinion of Chairman Cabaniss

File 3: ALJ's Decision

Footnote # 1 for
60
FLRA No. 155

• ALJ's Decision

Pursuant to §2423.27(b) of the Rules and Regulations of the Authority, a response to a motion for summary judgment is due 5 days after service. In accordance with §2429.22 of the Rules and Regulations, an additional 5 days are allowed when, as in this case, service was effected by mail.

Footnote # 2 for
60
FLRA No. 155

• ALJ's Decision

Lundberg's settlement agreement with the Respondent is not part of the record.

Footnote # 3 for
60
FLRA No. 155

• ALJ's Decision

The Authority also held that its jurisdiction was not diminished by the authority of the EEOC to examine allegations of discrimination, 58 FLRA at 532.

Footnote # 4 for
60
FLRA No. 155

• ALJ's Decision

Although Lundberg did not inform the Union of the mediation sessions until her EEOC complaint had been resolved, there is no evidence or allegation that she objected to the Union's presence, nor has it been alleged that the presence of the Union would have been inconsistent with the requirement, if any, of confidentiality.