The U.S. Court of Appeals for the D.C. Circuit has ruled that the Air Force committed an unfair labor practice when it refused to allow a union representative to be present during the mediation of a formal EEO complaint. No. 01-1373 (D.C. Cir. 1/17/03). The court upheld a decision by the Federal Labor Relations Authority that the mediation constituted a “formal discussion” pursuant to 5 USC 7114(a)(2)(A). While the Air Force contended that the EEO complaint was not a “grievance” affecting the bargaining unit, the court disagreed, noting that employees did not have the right to elect to file such complaints under the negotiated grievance procedure because the collective bargaining agreement excluded discrimination claims.
The FLRA had rejected the Air Force’s claims that the formal discussion rights do not apply during EEO proceedings and that unions have no institutional interest in the processing of EEO complaints. The FLRA pointed out that unions have such an interest as the resolution of an individual complaint may affect the rights of other bargaining unit employees and that the union didn’t waive its rights by excluding EEO disputes from the negotiated grievance procedure. The court agreed that the FLRA’s construction of the statute was a permissible one and entitled to judicial deference as there was no direct conflict between the rights of an employee victim of discrimination and the rights of the exclusive representative. The court disagreed with the Air Force that the union presence at ADR proceedings would undermine the confidentiality of the process or would violate the Privacy Act.
An important factor in the court’s decision was its finding that there was no evidence that the employee objected to the union’s presence at mediation. “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,” the court held. Thus in a situation where the employee objects to the union’s presence at ADR, an agency would be in a much stronger legal posture if it denied the union’s request to be present at the formal discussion.
** This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to http://www.passmanandkaplan.com. **
