Dept Air Force v. FLRA, No. 01-1373 (D.C. Cir. 2003)

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 10, 2002 Decided January 17, 2003

No. 01-1373

Department of the Air Force, 436th Airlift Wing,

Dover Air Force Base,

Petitioner

v.

Federal Labor Relations Authority,

Respondent

American Federation of Government Employees, Local 1709,

Intervenor for Respondent

On Petition for Review and Cross-Application for

Enforcement of an Order of the

Federal Labor Relations Authority

Sandra Wien Simon, Attorney, U.S. Department of Jus-

tice, argued the cause for petitioner. With her on the briefs

was William Kanter, Deputy Director.

 David M. Smith, Solicitor, Federal Labor Relations Au-

thority, argued the cause for respondent. With him on the

brief were William R. Tobey, Deputy Solicitor, and James F.

Blandford, Attorney.

Kevin M. Grile argued the cause for intervenor. With him

on the brief were Mark D. Roth and Charles A. Hobbie.

Before: Sentelle, Rogers and Garland, Circuit Judges.

Opinion for the Court filed by Circuit Judge Sentelle.

Sentelle, Circuit Judge: The Department of the Air

Force, 436th Airlift Wing, Dover Air Force Base ("Air

Force") petitions for review of an order from the Federal

Labor Relations Authority ("FLRA") concluding that the Air

Force committed an unfair labor practice by conducting a

formal discussion with a bargaining unit employee concerning

the mediation of a formal Equal Employment Opportunity

("EEO") grievance without affording the labor union of which

the employee is a member notice and an opportunity to be

present pursuant to 5 U.S.C. s 7114(a)(2)(A) (2000). The

FLRA seeks enforcement of its order. The Air Force argues

that an EEO complaint is not a "grievance" under section

7103(a)(9) and, thus, that it does not trigger the Union's

formal discussion rights under section 7114(a)(2)(A). The Air

Force also argues that the FLRA's interpretation of section

7114(a)(2)(A) is impermissible, urging us to adopt the reason-

ing of the Ninth Circuit in IRS, Fresno Service Center,

Fresno, Calif. v. FLRA, 706 F.2d 1019 (9th Cir. 1983). Be-

cause we agree with the FLRA that its interpretation is

permissible, we deny the Air Force's petition for review and

grant the FLRA's cross-application for enforcement of its

order.

I

The 1972 amendments to Title VII of the Civil Rights Act

extend coverage of the Act to include the employment prac-

tices of the federal government. Pub. L. No. 92-261, s 11, 86

Stat. 111 (1972) (codified as amended at 42 U.S.C. s 2000e-16

(2000)). The authority for enforcing the Civil Rights Act

resides with the Equal Employment Opportunity Commission

("EEOC"). 42 U.S.C. s 2000e-4 (2000).

Under EEOC regulations, an employee is required to at-

tempt to resolve his complaint on an informal basis (e.g., pre-

complaint counseling) before filing a formal complaint. Pur-

suant to the federal sector EEO program, agencies are

responsible for investigating complaints filed against them by

their employees. 29 C.F.R. s 1614.108(a) (2002). Mediation

is often available in appropriate cases to assist the parties in

resolving their disputes. In this case, the Air Force had a

contract with Resolution Group to provide mediation services.

The contract provides that Resolution Group will provide its

services pursuant to the Alternative Dispute Resolution Act, 5

U.S.C. s 571 et seq. (2000) ("ADR Act").

EEOC regulations encourage agencies to settle EEO cases.

They are encouraged to "incorporate alternative dispute reso-

lution [ADR] techniques into their investigative efforts" in

order to promote early resolution of disputes. 29 C.F.R.

s 1614.108(b). They are instructed to make "reasonable ef-

forts" to voluntarily settle disputes as early as possible. 29

C.F.R. s 1614.603.

EEOC regulations provide that when a complaint of dis-

crimination is covered by a collective-bargaining agreement

("CBA") that permits such complaints to be raised in a

negotiated grievance procedure, the person filing the com-

plaint "must elect to raise the matter under either part 1614

or the negotiated grievance procedure, but not both." 29

C.F.R. s 1614.301(a). On the other hand, "[w]hen a person is

not covered by a [CBA] that permits allegations of discrimi-

nation to be raised in a negotiated grievance procedure,

allegations of discrimination shall be processed as complaints

under [EEOC regulations part 1614]." 29 C.F.R.

s 1614.301(b).

Section 1614.109(e) provides that attendance at hearings is

limited to those with direct knowledge relating to the com-

plaint. Furthermore, "[h]earings are part of the investigative

process and are thus closed to the public." 29 C.F.R.

s 1614.109(e).

 EEOC Management Directive 110 ("MD 110") is a docu-

ment issued by the EEOC to provide federal agencies with

EEOC policies, procedures, and guidance relating to the

processing of employment discrimination complaints governed

by part 1614 of EEOC regulations. EEOC regulations and

MD 110 require that all agencies establish an ADR program

to be utilized during the pre-complaint process as well as

during the formal complaint process. 29 C.F.R.

s 1614.102(b)(2); MD 110, Ch. 3, s I.

MD 110 also provides that agencies must be mindful of the

information disclosure prohibitions imposed by the Privacy

Act, 5 U.S.C. s 552a (2000). Pre- and post-complaint infor-

mation is contained in a system of records that are subject to

the Privacy Act. This information "cannot be disclosed to a

union unless the complaining party elects union representa-

tion or gives his/her written consent." MD 110, Ch. 3,

s II(A)(6).

Confidentiality is an essential component to the success of

agency ADR proceedings. MD 110, Ch. 3, s VII(A)(3).

Parties who know that their ADR statements and infor-

mation are kept confidential will feel free to be frank and

forthcoming during the proceeding, without fear that

such information may later be used against them. To

maintain that degree of confidentiality, there must be

explicit limits placed on the dissemination of ADR infor-

mation.



Id. Agencies are encouraged to issue their own written

policies to protect the confidentiality of ADR proceedings.

Id.

The Federal Service Labor-Management Relations Act, 5

U.S.C. s 7101 et seq. (the "Act"), provides a general frame-

work for regulating labor-management relations for the fed-

eral government. The Act provides that CBAs shall contain

procedures for the settlement of grievances. 5 U.S.C.

s 7121(a)(1). However, the parties to a CBA can exclude any

subject from the coverage of the CBA and its grievance

procedures. Id.

 The Act regulates the manner in which CBAs are negotiat-

ed as well as the manner in which a bargaining unit employee

may challenge adverse personnel actions. Section 7114 of the

Act defines the right of representation of the employees in

the grievance process. It provides that

[a]n 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 representa-

tives 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 condi-

tion of employment.

5 U.S.C. s 7114(a)(2). Section 7103(a)(9) defines what consti-

tutes a "grievance."

"[G]rievance" means any complaint -



(A) by any employee concerning any matter relating to

the employment of the employee;



(B) by any labor organization concerning any matter

relating to the employment of any employee; or



(C) by an employee, labor organization, or agency con-

cerning -



(i) the effect or interpretation, or a claim of breach, of

a [CBA]; or



(ii) any claimed violation, misinterpretation, or misap-

plication of any law, rule, or regulation affecting condi-

tions of employment.

5 U.S.C. s 7103(a)(9).

The matters to be processed under the CBA's grievance

procedures are expressly limited by section 7121(d) of the

Act, which preserves the employee's right to proceed with a

discrimination claim through existing statutory schemes.

Section 7121(d), similarly to part 1614 of EEOC regulations,

provides for the aggrieved employee to elect his means of

seeking relief. If an "aggrieved employee" is affected by a

prohibited personnel practice under 5 U.S.C. s 2302(b)(1)

(2000) (incorporating the Civil Rights Act) that also falls

within the coverage of the negotiated grievance procedure,

the employee "may raise the matter under a statutory proce-

dure or the negotiated procedure, but not both." 5 U.S.C.

s 7121(d). Section 7121(d) notes that selection of the negoti-

ated grievance procedure does not preclude the aggrieved

employee from requesting EEOC review of a final decision in

a matter "involving a complaint of discrimination of the type

prohibited by any law administered by the [EEOC]." 5

U.S.C. s 7121(d). Thus, section 7121(d) provides for alterna-

tive avenues of relief, and the EEOC has final review authori-

ty over any decision resulting from the grievance procedure

involving discrimination within the EEOC's jurisdiction.

Elizey Jones, Jr., a member of the bargaining unit of

employees at Dover AFB, filed a formal EEO complaint of

discrimination pursuant to part 1614 of the EEOC regulations

in November of 1999 in connection with a suspension that had

been imposed upon him. Jones did not file a complaint

pursuant to the CBA grievance procedure because the CBA

explicitly excludes claims of discrimination from the grievance

procedure. Labor-Management Contract between Dover Air

Force Base, Delaware and Local 1709, AFGE at Art. 22, s 3

("The negotiated Grievance procedures will not cover/pertain

to grievances or appeals concerning ... EEO complaints.").

Jones requested that the Air Force initiate mediation of his

complaint pursuant to EEOC regulations. The Air Force

referred this request to the Resolution Group. Kathy Frag-

noli, owner of the Resolution Group, was assigned to mediate

the dispute.

Prior to the mediation, Jones and the agency representa-

tive, Captain Rockenbach, signed a confidentiality agreement

in order to preserve the confidentiality of the mediation. On

January 18, 2000, mediator Fragnoli, Jones, and Rockenbach

participated in a mediation proceeding for approximately six

hours. About 20% of the time was spent in joint sessions, the

rest in individual caucuses. The parties failed to reach a

settlement. Jones' union, Local 1709 of the American Feder-

ation of Government Employees, was neither notified of, nor

given the opportunity to attend, the mediation.

Local 1709 filed an unfair labor practice complaint with the

FLRA, and a hearing was held before Administrative Law

Judge Garvin Lee Oliver (the "ALJ"). The ALJ concluded

that the mediation proceedings constituted a formal discus-

sion within the meaning of section 7114(a)(2)(A) of the Act

and that the Air Force violated that section by failing to

provide Local 1709 notice and an opportunity to be represent-

ed at the mediation. The ALJ found that the mediation

concerned a grievance within the meaning of section

7114(a)(2)(A), relying on an FLRA decision that formal EEO

complaints are grievances within section 7114(a)(2)(A) not-

withstanding a negotiated grievance procedure that excludes

discrimination complaints. See Luke Air Force Base, Ariz.,

54 F.L.R.A. 716 (1998), rev'd, 208 F.3d 221 (9th Cir. 1999)

(Table). The ALJ also concluded that the presence of a union

representative at the mediation of an EEO complaint would

not conflict with EEOC regulations or the ADR Act.

The Air Force filed exceptions to the decision of the ALJ.

The FLRA agreed with the ALJ that the Air Force violated

the Act by failing to provide Local 1709 with notice and an

opportunity to be heard. The FLRA found that the media-

tion concerned a grievance. In doing so, the FLRA focused

on the language of section 7103(a)(9) which states that a

grievance is "any complaint ... by any employee concerning

any matter relating to the employment of the employee." 5

U.S.C. s 7103(a)(9) (emphasis added). The FLRA found that

this broad definition included any employment-related com-

plaint, regardless of the forum chosen.

The FLRA rejected the Ninth Circuit's determination that

the formal discussion right does not apply during EEOC

proceedings because those complaints are "discrete and sepa-

rate from the grievance process to which 5 U.S.C. ss 7103

and 7114 are directed." IRS Fresno, 706 F.2d at 1024. The

FLRA also rejected the Air Force's argument that section

7121 provides a basis for limiting the definition of grievance.

The FLRA relied on this Court's decision in National Trea-

sury Employees Union v. FLRA, 774 F.2d 1181 (D.C. Cir.

1985) ("NTEU"), in which this Court held that section 7121

provides that a grievance includes both those complaints filed

pursuant to a negotiated grievance procedure and those filed

pursuant to alternative statutory procedures. Id. at 1187.

The FLRA, after reviewing the legislative history of the Act,

concluded that the term grievance should not be limited to

matters covered by a negotiated grievance procedure. More-

over, the FLRA held that to the extent the legislative history

supports a narrower definition of grievance, it does so only

with respect to section 7121, not the formal discussion right

provisions of section 7114.

The FLRA rejected the Air Force's arguments that unions

have no institutional interest in the processing of EEO com-

plaints. The FLRA stated that unions have an interest in

how such complaints are resolved and that their interest does

not depend on the forum in which the employee files his

complaint. The FLRA, citing Department of Veterans Af-

fairs v. FLRA, 3 F.3d 1386, 1390 (10th Cir. 1993), noted that

the resolution of one individual complaint may bear on the

rights of other bargaining unit employees.

The FLRA also rejected the Air Force's argument that the

exclusion of EEO disputes from the negotiated grievance

procedure amounts to a waiver of any rights Local 1709 has

with respect to such matters. The FLRA remarked that

Local 1709 may have excluded these matters simply to avoid

some of the expenses related to processing EEO grievances.

The FLRA found no conflict between Local 1709's formal

discussion right and EEOC regulations or the ADR Act. The

FLRA found no EEOC regulation precluding union attend-

ance. With respect to the ADR Act, the FLRA found that

Local 1709 was a party under the ADR Act because it was

"entitled as of right to be admitted," 5 U.S.C. s 551(3),

pursuant to its formal discussion rights under section

7114(a)(2)(A) of the Act. In the alternative, the FLRA ruled

that the ADR Act contemplates the attendance and partic-

ipation of "nonparty participants." 5 U.S.C. s 574(a)(1), (e).

Lastly, the FLRA dismissed the Air Force's remaining argu-

ments as conjectural. The Air Force had cited potential

problems with the FLRA's rule that the FLRA thought

purely hypothetical in the present case.

The Air Force petitioned for review here.

II

Section 7103(a)(9) defines "grievance" as "any complaint

... by any employee concerning any matter relating to the

employment of the employee." 5 U.S.C. s 7103(a)(9). Al-

though the Air Force contends that the EEO proceeding

initiated by Jones is not a grievance within the meaning of

section 7103(a)(9), our decision in NTEU demonstrates other-

wise. See 774 F.2d at 1186-87 (holding that a grievance

includes both those complaints filed pursuant to a negotiated

grievance procedure and those filed pursuant to alternative

statutory procedures). The Air Force suggests that NTEU is

distinguishable because it involved a Merit Systems Protec-

tion Board ("MSPB") proceeding rather than an EEO pro-

ceeding; however, our analysis in NTEU relied upon the text,

structure, and legislative history of the Act and did not rest

on the type of grievance in question. See 774 F.2d at 1185-

88. We find no reason to distinguish NTEU; accordingly, we

will read the term "grievance" as we did in that case.

Because the present case involves a "grievance" as defined

in section 7103, Local 1709's section 7114 formal discussion

rights are triggered, and we turn to the issue of whether the

FLRA's construction of section 7114(a)(2)(A) passes Chevron

muster. In interpreting an agency's enabling or organic

statute, we "employ[ ] traditional tools of statutory construc-

tion" to determine "whether Congress has directly spoken to

the precise question at issue." Chevron U.S.A. Inc. v. Natu-

ral Res. Def. Council, 467 U.S. 837, 843 n.9, 842 (1984). We

"must give effect to the unambiguously expressed intent of

Congress;" if the statute is unambiguous on the question at

issue, our inquiry ends there. Id. at 842-43 (Chevron step

one). Where "the statute is silent or ambiguous with respect

to the specific issue, the question for the court is whether the

agency's answer is based on a permissible construction of the

statute." Id. at 843 (Chevron step two). The Supreme Court

has stated that the FLRA is entitled to "considerable defer-

ence when it exercises its special function of applying the

general provisions of the [Act] to the complexities of federal

labor relations." National Fed'n of Fed. Employees, Local

1309 v. Dep't of the Interior, 526 U.S. 86, 99 (1999) (quotation

omitted).

Section 7114(a)(2)(A) provides that a union has a right 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." 5 U.S.C. s 7114(a)(2)(A). The FLRA has

construed this language as providing Local 1709 the right to

have a union representative present at the mediation of a

formal EEO complaint filed by Jones, one of Local 1709's

members.

The language of section 7114(a)(2)(A) is quite broad. Be-

cause it does not yield a clear and unambiguous interpreta-

tion, we move past step one to step two of the Chevron

inquiry. The FLRA's construction is a natural reading of the

broad statutory language. In addition, the FLRA's construc-

tion is supported by our decision in NTEU. 774 F.2d at 1189

(holding that section 7114(a)(2)(A) provides "that an exclusive

representative has the right to be present at any formal

discussion of a grievance between management and a bar-

gaining unit employee"). Nevertheless, the Air Force argues

that the FLRA's construction is impermissible, urging the

Court to follow the Ninth Circuit's reading of section

7114(a)(2)(A) in IRS Fresno, 706 F.2d 1019. In that case, the

Ninth Circuit held that a pre-complaint conciliation confer-

ence was not a grievance, explaining that EEOC procedures

"are not controlled by [section] 7114(a)(2)(A) because they are

discrete and separate from the grievance process to which

[sections] 7103 and 7114 are directed." IRS Fresno, 706 F.2d

at 1024. The problem with this argument is that we previ-

ously disagreed with the Ninth Circuit's narrow reading of

section 7114(a)(2)(A). NTEU, 774 F.2d at 1188. Further-

more, as we pointed out in NTEU, IRS Fresno appears "to be

based primarily on its conclusion that the precomplaint con-

ference did not constitute a 'formal' discussion" rather than

on its brief analysis of the grievance issue. Id.

As it did with the grievance issue, the Air Force attempts

to distinguish NTEU on the grounds that EEO proceedings

utilized by Jones here are a different vehicle than MSPB

proceedings utilized in NTEU. The Air Force notes that the

Ninth Circuit has treated EEO proceedings and MSPB pro-

ceedings differently. Compare IRS Fresno, 706 F.2d 1019

(finding no formal discussion right in EEO proceeding) with

Dep't of Veterans Affairs Med. Ctr. v. FLRA, 16 F.3d 1526

(9th Cir. 1994) (finding a formal discussion right in MSPB

proceeding). However, the Ninth Circuit itself has noted that

our reasoning in NTEU, rejecting the IRS Fresno analysis, is

more persuasive than that court's own reasoning in IRS

Fresno. Veterans Affairs Med. Ctr., 16 F.3d at 1534 n.4.

The Air Force also attempts to evade NTEU by emphasiz-

ing the primacy of an aggrieved employee's rights in the

context of a discrimination claim. The Air Force notes that

in NTEU we acknowledged in a footnote that "in the case of

grievances arising out of alleged discrimination ..., 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." 774 F.2d at 1189 n.12. However, the point we made in footnote

12 of NTEU is that "a direct conflict between the rights of an

exclusive representative under s 7114(a)(2)(A) and the rights

of an employee victim of discrimination should ... presum-

ably be resolved in favor of the latter." Id. Such a direct

conflict is not present here.

The Air Force argues that there is a conflict between the

FLRA's construction of section 7114(a)(2)(A) and the confi-

dentiality protections of both sections of the ADR Act (5

U.S.C. s 574(a) & (b)) and the Privacy Act, 5 U.S.C. s 552a.

This argument fails because neither of the statutes cited by

the Air Force prohibits union attendance at ADR proceed-

ings. The provisions of the ADR Act cited by the Air Force

concern only the confidentiality of communications made at

an ADR proceeding and do not address what persons or

parties may attend an ADR proceeding. 5 U.S.C. s 574.1

Similarly, the Privacy Act concerns the confidentiality of

records rather than what parties may attend an ADR pro-

ceeding, 5 U.S.C. s 552a, and this case does not present a

situation where the presence of a union representative in an

ADR proceeding would result in the revelation of confidential

information in violation of the Privacy Act. In other words,

neither the ADR Act nor the Privacy Act creates a conflict

(much less a direct conflict) with section 7114(a)(2)(A).

The Air Force also argues that the FLRA's construction of

section 7114(a)(2)(A) is impermissible because of EEOC regu-

lation 29 C.F.R. s 1614.109(e), which provides that attendance

at agency hearings is "limited to persons determined by the

administrative judge to have direct knowledge relating to the

complaint." However, as the Air Force acknowledged at oral

argument, this regulation says nothing about what happens at

ADR proceedings.

Left without a statute or regulation as a hook, the Air

Force attempts to hang its hat on an agency manual, MD 110.

Section VII of Chapter 3 of MD 110 addresses what it refers

to as ADR "core principles." It states: "Confidentiality must

be maintained by the parties, by any agency employees

involved in the ADR proceeding and in the implementation of

an ADR resolution...." MD 110, Ch. 3, s VII(A)(3). The

Air Force contends that union presence at ADR proceedings

would undermine the confidentiality of the process. This

argument amounts to nothing more than the Air Force's

doubt that union representatives can keep confidential mat-

ters confidential. Union representatives are often in the

position of having to maintain confidentiality. More impor-

tantly, even assuming that an inconsistency between an agen-

cy manual and a statute constitutes a conflict, the Air Force

__________

1 It is not entirely clear whether the ADR Act is applicable in this

case. The ADR Act by its terms is voluntary and merely supple-

ments, rather than limits, other available ADR techniques. 5

U.S.C. s 572(c).

again fails to show a conflict with the FLRA's construction of

section 7114(a)(2)(A).

It is important to note one other reason why there is no

direct conflict in this case. As the Air Force conceded, there

is no evidence that Jones (the employee) objected to union

presence at the mediation proceeding. We do not foreclose

the possibility that an employee's objection to union presence

could create a "direct" conflict that should be resolved in

favor of the employee as described in footnote 12 of NTEU.

774 F.2d at 1189 n.12. As there is no conflict present in the

case before us, the FLRA's construction is permissible. Ac-

cordingly, the Air Force committed an unfair labor practice in

failing to give Local 1709 notice of and the opportunity to be

present at the mediation.

III

With support from our precedent in NTEU, 774 F.2d at

1186-87, we read section 7103(a)(9)'s broad definition of

"grievance" as encompassing both those complaints filed pur-

suant to a negotiated grievance procedure and those filed

pursuant to alternative statutory procedures. In addition, we

find permissible the FLRA's construction of section

7114(a)(2)(A) that provides Local 1709 the right to have a

union representative present at the mediation of a formal

EEO complaint filed by a bargaining unit employee. For

these reasons, we deny the Air Force's petition for review

and grant the FLRA's cross-application for enforcement of its

order.