Equal employment opportunity settlement negotiations: does the union have a right to attend?

Army Lawyer, April, 2004 by John N. Ohweiler

A bargaining unit employee filed a formal Equal Employment Opportunity (EEO) complaint alleging several instances of discrimination based on race and sex. During the processing of the complaint, the Department of Defense (DOD) Office of Complaint Investigations (OCI) recommended the parties engage in alternative dispute resolution to discuss a possible settlement. Both parties voluntarily agreed and subsequently reached a settlement regarding the complaint. The union has now filed an Unfair Labor Practice (ULP) claiming that the EEO settlement negotiation was a formal discussion that required the agency to give the union notice and an opportunity to attend. Has the agency committed a ULP?

Introduction

Under the Federal Service Labor-Management Relations Statute (FSLMRS), (1) an agency must give the exclusive representative of an appropriate bargaining unit the opportunity to be represented at any formal discussion between one or more agency representatives and one or more employees in the bargaining unit, or their representatives, concerning any grievance or any personnel policy or practices or other general condition of employment. (2) The purpose of this representational right is to grant the union a meaningful opportunity to participate in any discussions pertaining to the workplace in order to protect and represent the institutional interests of the bargaining unit. (3)

On its face, it is unclear whether this representational right includes union presence at EEO settlement negotiations between the agency and a member-of-the-bargaining-unit-complainant. (4) Arguably, the presence of a third-party-union-representative at such a negotiation might hinder an already difficult process, especially when the complainant does not want a union representative to participate. (5) Nevertheless, if EEO complaints are grievances, and if the settlement negotiation occurs under formal circumstances, then the union's independent right to representation entitles it to a participatory presence at the discussion.

Discussion

The Federal Labor Relations Authority (FLRA) has long asserted that EEO settlement negotiations are formal discussions of grievances under the FSLMRS. (6) The EEOC, however, clearly views the presence of unrequested-third-parties as unnecessary and as a potential impediment to complaint resolution. Its position is that "any activity conducted in connection with an agency's ADR program during the EEO process would not be a formal discussion within the meaning of the [FSLMRS]." (7)

In 1999, the Ninth Circuit resolved the apparent conflict holding that EEO settlement discussions were not grievances under the FSLMRS, and therefore did not require notice and an opportunity for union representation. (8) Subsequently, in 2003, the Court of Appeals for the District of Columbia (D.C.) specifically disagreed with the Ninth Circuit and held that EEO settlement negotiations are grievances under the FSLMRS and that the exclusive representative has an independent right to attend to protect the union's interests. (9) In United States Department of the Air Force, Luke Air Force Base, Arizona (Luke III), (10) the FLRA resolved (11) the conflict between the D.C. and Ninth Circuit. The FLRA held that EEO settlement negotiations are grievances and therefore trigger the notice provisions of the FSLMRS if they occur under formal circumstances. (12)

In Luke III, the Air Force conducted three EEO settlement mediations with the complaining employee, without informing the union. (13) The union alleged that these mediation sessions were formal discussions of grievances which triggered their right to notice and an opportunity to attend. (14) In deciding the case, the FLRA focused on three issues: (1) whether an EEO settlement negotiation is formal within the meaning of the FSLMRS; (2) whether the EEO complaint is considered a grievance within the meaning of the FSLMRS; and (3) whether potential union participation undermines the EEOC's exclusive authority to resolve complaints of discrimination.

Whether an EEO Settlement Negotiation Is Formal Under the FSLMRS

In order for the union's representational right to be triggered, the FSLMRS requires: (i) a discussion; (ii) which is formal; (iii) between a representative of the agency and a unit employee; and (iv) which concerns any grievance or any personnel policy or practice or other general condition of employment. (15) In Luke III, the FLRA considered the first three elements together, as part of their formality analysis.

In determining whether a discussion is sufficiently formal to trigger the union's representational right, the FLRA considers the totality of the circumstances, to include:

   (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 meeting for the
   discussions were called; (5) the length of the
   discussions; (6) whether a formal agenda was
   established; and (7) the manner in which the
   discussions were conducted. (16)