110 LRP 33498

110 LRP 33498

U.S. Department of the Air Force, Davis-Monthan Air Force Base, Tucson, Ariz.

and American Federation of Government Employees, Local 2924

64 FLRA 845

Federal Labor Relations Authority

64 FLRA No. 158

DE-CA-07-0377

May 28, 2010

Ruling

The FLRA majority reversed the ruling of an administrative law judge and

determined that an agency committed an unfair labor practice when it failed to

provide the union notice and an opportunity to attend a formal discussion.

Member Beck issued a dissenting opinion.

Meaning

The employee's verbal and written requests that the union not be present at the

meeting didn't cite any statutory right, or explain how the union's presence

would interfere with such rights. The FLRA found that, absent any such

explanation, the employee's actions weren't sufficient to deprive the union of

its formal discussion right.

Case Summary

A bargaining unit member filed a formal EEO complaint. The agency and employee

agreed to hold a mediation session to resolve the matter. The employee stated

verbally and on an ADR form that he didn't want the union present at the

meeting. The union learned of the meeting and filed a ULP charge alleging that

the agency violated the statute when it failed to provide the union notice and

an opportunity to attend. The administrative law judge found that the union's

right to be present was superseded by the employee's clear and specific

objection to the union's attendance. The ALJ concluded that there was no ULP.

The FLRA's general counsel challenged the ALJ's conclusion that the union wasn't

entitled to attend the meeting. Although neither the FLRA nor the courts have

ruled that unions have an absolute right to attend discussions about EEO

complaints, they have also not held that an employee's objection, without more,

is sufficient to deprive a union of its formal discussion right, the FLRA

observed. The U.S. Court of Appeals, D.C. Circuit wrote in Luke AFB, 103 LRP

2316, 316 F.3d 280 (D.C. Cir. 2003) that a "direct conflict" between the rights

of the union and the rights of an employee victim of discrimination should

"presumably" be resolved in favor of the employee. However, neither the

employee's statement that the union's presence would be a waste a time, nor his

checking a box on an ADR form indicating that he didn't want the union to be

present, cited any statutory rights or explained why the union's presence would

interfere with such rights. The FLRA found that, absent any such explanation,

the employee's comment and box-checking weren't sufficient to show a direct

conflict between the employee's individual rights and the union's right to be

present. Thus, the agency had no basis on which to deny the union notice and an

opportunity to be present, and in doing so it committed a ULP.

The FLRA ordered the agency to cease and desist from failing to provide the

union with advance notice of formal discussions.

In a dissenting opinion, Member Beck stated that the "direct conflict" standard

placed a burden on the employee that was not required. Beck wrote that a simple

"conflict" in rights, which arose once the employee unmistakably asserted in

that he didn't desire union participation, should be resolved in favor of the

employee.

Judge / Administrative Officer

Carol Waller Pope, Chairman, and Thomas M. Beck and Ernest DuBester, Members

Full Text

DECISION AND ORDER

DECISION AND ORDER

Before the Authority: Carol Waller Pope, Chairman, and

Thomas M. Beck and Ernest DuBester, Members'

I. Statement of the Case

This unfair labor practice (ULP) case is before the Authority on exceptions to

the attached decision of the Administrative Law Judge (Judge) filed by the

General Counsel (GC) and cross-exceptions filed by the Respondent. The

Respondent filed an opposition to the GC's exceptions, and the GC filed an

opposition to the Respondent's cross

exceptions.

The amended complaint alleges that the Respondent violated § 7116(a)(1) and (8)

of the Federal Service Labor-Management Relations Statute (the Statute) by

failing to comply with § 7114(a)(2)(A) of the Statute when it held a formal

discussion regarding an Equal Employment Opportunity (EEO) complaint filed by an

individual bargaining-unit employee (the employee) without providing the Union

with notice and an opportunity to

1 Member Beck's dissenting opinion is set forth at the end of the decision.

be present. The Judge found that the Respondent had not violated the Statute as

alleged and recommended an order dismissing the complaint.

For the following reasons, we reverse the Judge and fmd that the Respondent

violated the Statute as alleged in the complaint.

II. Background and Judge's Decision

A. Background

The facts are set forth in detail in the Judge's decision and are only briefly

summarized here. The employee filed a formal EEO complaint regarding the

Respondent's failure to grant him a reasonable accommodation for a work-related

disability. He was not represented by the Union in the processing of his EEO

complaint. In an attempt to resolve the EEO complaint, the Respondent and the

employee agreed to hold a mediation session with a certified mediator from the

Investigations and Resolutions Division of the Department of Defense.

Prior to the mediation, the Respondent's Equal Opportunity (EO) Director and the

employee had a conversation in which the employee stated that he did not want

the Union to be present at the mediation. 2 See Judge's Decision at 3. The

Respondent subsequently sent the employee a "Formal Complaint [Alternative

Dispute Resolution (ADR)]

Election" form. Id. As relevant here, the employee initialed on the line of that

form that states: "I object to having the [U]nion' s presence at the mediation

and request [that it] not be present." Id. at 4.

The mediator, the employee, and the employee's third-level supervisor (at the

time of the incidents alleged in the formal EEO complaint) participated in the

mediation. The mediation was held in the Respondent's EO office, which is

separate from the employee's and the third-level supervisor's work areas. The

mediation ended without a resolution.

Subsequently, the employee informed the Union President that there had been a

mediation regarding his EEO complaint. See id. at 5. This was the first time the

Union was notified that a mediation had been scheduled or held. See id. The

Union filed a ULP charge, and the GC issued a complaint, alleging that the

Respondent had violated § 7116(a)(1) and (8) of the Statute by failing to comply

with § 711 4(a)(2)(A) of the Statute when it held a formal discussion regarding

an EEO complaint without providing the Union with notice or an opportunity to be

present. 3 The Respondent admitted in its

In this respect, the Judge specifically credited the testimony of the

Respondent's EO Director that the employee "directly told her that he did not

want the Union present for the scheduled mediation." Judge's Decision at 3 n.3.

In so doing, the Judge rejected the employee's denial that such a conversation

had taken ?lace. See id.

Section 7116(a) of the Statute provides, in pertinent part, that it is a ULP for

an agency "to interfere with, restrain, or coerce any employee in the exercise

by the employee of any right under this chapter[,]" or "to otherwise fail or

refuse to comply with any provision of this chapter." 5 U.S.C. § 7116(a)(1),

(8). Section 7114(a)(2)(A) of the Statute provides, in pertinent part, that:

answer that it held the meeting without informing the Union but noted that the

employee had requested that the Union not be present. See id.

B. Judge's Decision

Applying Authority precedent, the Judge found that the mediation session was a

formal discussion within the meaning of § 7114(a)(2)(A) of the Statute. See

Judge's Decision at 7-11 (citing SSA, Office of Hearings & Appeals, Boston Reg?

Office, Boston, Mass., 59 FLRA 875, 878 (2004) (SSA, Boston); U.S. Dep't of the

Air Force, 436th Airlift Wing, Dover Air Force Base, Dover, Del, 57 FLRA 304

(2001) (Chairman Cabaniss dissenting), aff'd subnom. Dover Air Force Base v.

FLRA, 316 F.3d 280 (D.C. Cir. 2003) (Dover); Luke Air Force Base, Ariz., 54 FLRA

716 (1988), rev 'd subnom. Luke Air Force Base v. FLRA, 208 F.3d 221 (9 th Cir.

1999), cert. denied, 531 U.S. 819 (2000) (Luke I)). In so finding, the Judge

addressed the Respondent's argument that EEO complaints filed under the Equal

Employment Opportunity Commission's (EEOC's) statutory appeals process are not

grievances within the meaning of § 7114(a)(2)(A), and she acknowledged that the

United States Court of Appeals for the Ninth Circuit (Ninth Circuit) had adopted

that view in Luke Air Force Base v. FLRA, 308 F.3d 221. However, the Judge found

that "the Authority [has] expressly rejected" this argument in decisions that

followed Luke Air Force Base v. FLRA. Judge's Decision at 10 (citations

omitted). Finding that "this case presented no new facts to distinguish it from

those prior cases[,]" the Judge concluded that the mediation session involved a

grievance within the meaning of § 7114(a)(2)(A) of the Statute. Id.

In addition, the Judge rejected the Respondent's argument that the Union's

exclusion from the session was warranted because there was a conflict between

the Union's institutional rights under § 7114(a)(2)(A) and the employee's

individual rights under the Alternative Dispute Resolution Act (ADR Act) and

other statutes governing confidentiality. According to the Judge, the Respondent

"presented nothing persuasive that has not already been considered and rejected

by the Authority[]" in previous decisions Id. at 7.

Next, the Judge considered whether the employee's objection to the Union's

presence at the mediation "abrogated" the Union's statutory right to prior

notice and an opportunity to attend the mediation. Id. at 11. The Judge stated

that, in NTEU v. FLRA, 774 F.2d 1181 (D.C. Circ. 1985) (NTEU), when considering

whether the union had the right to attend the interview of a bargaining-unit

employee in preparation for a Merit Systems Protection Board (MSPB) hearing, the

court stated:

in the case of grievances arising out of alleged discrimination on the basis of

race, religion, sex or national origin, Congress has explicitly decided

[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 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[.]"

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.

Judge's Decision at 11 (quoting NTEU, 774 F.2d at 1189 n.12 (internal citations

omitted)). Further, the Judge noted that, in Dover, 316 F.3d 280, the United

States Court of Appeals for the District of Columbia Circuit (D.C. Circuit)

found no inherent per se conflict between an EEO complainant's rights and the

union's right to attend a formal discussion, but nevertheless stated in dicta

that it did "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 ofNTEU." Judge's Decision at 12

(quoting Dover, 316 F.3d at 287).

Applying the foregoing principles, the Judge credited the Respondent's EO

Director's testimony that the employee had told her that "the Union's presence

would be a waste of time" and that, in response, she had sent the employee the

ADR election form. Judge's Decision at 14. The Judge found that, on the form,

the employee checked the box indicating that he did not want the Union to be

present. Id. at 14-15. The Judge also found no evidence that the Respondent

"coerced, manipulated or attempted to influence" the employee's decision to

object to the Union's presence. Id. at 14. In addition, the Judge found that the

employee "purposely objected" to the Union's presence and was "aware of the

consequences for the Union by the action that he took." Id. at 14-15. Further,

the Judge determined that the Respondent was not aware of the employee's alleged

motivation for not wanting the Union present and that the employee's subsequent

testimony regarding that motivation was "of no consequence. " 4 Id. at 15.

Moreover, the Judge found that it was unnecessary for the Respondent "to go

beyond" the employee's signed objection form in order to get some explanation

from the employee for the actions he took "in the face of such an explicit

direction that the union not be present[.]" Id.

Citing Dover, the Judge determined that "the Union's right to be present was

superseded by the individual employee's clear and specific objection to the

Union's presence." Id. at 15. Accordingly, the Judge concluded that the

Respondent's failure to give the Union notice and an opportunity to be present

at the mediation did not violate the Statute, and she recommended dismissing the

complaint.

4 As discussed further below, the employee testified at the hearing that he did

not want the Union present because he was upset that the Union previously had

refused to take one of his grievances to arbitration, and because he believed

that the Union was entitled to be present and he was curious to see how the

Respondent would react to his objection. See Judge's Decision at 13.

III. Positions of the Parties

A. GC's Exceptions

The GC excepts to the Judge's finding that the Union was not entitled to notice

of, and an opportunity to participate in, the mediation session. Noting that the

D.C. Circuit's statement in NTEUreferenced "a direct conflict" between the

rights of an exclusive representative and the rights of an employee, the GC

argues that it is necessary to identify "the competing rights that are involved,

including the statutory or regulatory basis of such rights." Exceptions at 3-4

(quoting 774 F.2d at 1189 n.12). In this connection, the GC asserts that both

NTEU and Dover indicate that an employee's objection to the Union's presence

would not create a direct conflict with a union's right to attend a formal

discussion "unless the employee's objection was itself rooted in the exercise of

a recognized statutory or regulatory right." Exceptions at 5. According to the

GC, "[i]nsisting that an employee's objection be rooted in a recognized right

would prevent a [u]nion from having to surrender its legal right to attend a

formal discussion in favor of demonstrably frivolous, petty, or vindictive

objections, including objections that are entirely illegitimate in nature, such

[as] ones that are racially motivated." Id.

Further, the GC contends that a "major flaw" in the Judge's decision is that she

never identified "the particular right" the employee was allegedly exercising

through his objection to the Union's presence. Id. at 6 (emphasis in original).

In this connection, the GC claims that the employee's objection "had absolutely

nothing to do with any concerns over EEO-based rights[.]" Id. at 8. Rather, the

GC states that the employee objected to the Union's presence for the "fairly

frivolous reasons []" that he: (1) was upset that the Union previously had

refused to take one of his grievances to arbitration; and (2) believed that the

Union was entitled to be present and he was curious to see how the Respondent

would react to his objection. Id. In addition, the GC argues that the employee

specifically testified that his objection was "not based on any concerns over

confidentiality, privacy interests, or that the Union's presence might disrupt

the mediation process." Id. at 8-9. Based on the foregoing, the GC contends that

the employee's objection was "both subjectively (from the employee's

perspective) and objectively (from management's perspective) unrelated to" any

entitlements that the employee might have had as an EEO complainant. Id. at 9.

Thus, the GC asserts that the objection was not sufficient to create a conflict,

either direct or indirect, with the Union's statutory right to be present.

By contrast, the GC asserts that the Union's interest in attending the mediation

of formal EEO complaints, as with other formal discussions, is "to represent the

bargaining unit as a whole and to make sure that bargaining unit employee rights

are not compromised." Id. at 7. According to the GC, the Union's presence at

such meetings would permit the Union to: (1) track the effect of resulting

settlement agreements on bargaining-unit employees; (2) observe the process and

make sure that proper EEO procedures were being followed; and (3) identify

whether the mediation process or any settlement agreements violated governing

laws, rules, regulations, or contract provisions. Id. at 7-8.

The GC acknowledges that the EEOC has issued guidance that confidentiality is

essential to the success of all ADR proceedings and concedes that there may be

circumstances in which an employee's objection to a union's presence might

involve the exercise of an EEO-based right to confidentiality. See id. at 8.

However, the GC notes that, even if the employee's objection could be construed

as raising confidentiality concerns, the Authority has held that measures can be

taken to ensure that confidentiality of a mediation session is addressed and

maintained, such as through the use of confidentiality agreements by all

participants, including the union representatives. See id. at 9-10 (citing U.S.

Dep 't of the Air Force, Luke Air Force Base, Ariz., 58 FLRA 528 (2003) (Member

Armendariz concurring and Chairman Cabaniss dissenting) {Luke II)). The Union

also notes that the Union President, who is a trained mediator, testified that

he would conscientiously maintain the confidentiality of any mediation he

attended. See Exceptions at 10.

B. Respondent's Opposition

The Respondent argues that an individual's EEO rights must prevail over a

union's institutional rights to be present at a formal discussion under §

7114(a)(2)(A) because the union's role in that context is more restricted than

its role under the parties' negotiated grievance procedure. See Respondent's

Cross-Exception & Opp'n at 3-4 (citing Luke II, 58 FLRA at 538 (Concurring

Opinion of Member Armendariz); NTEU, 774 F.2d at 1189 n. 12)).

B. Respondent's Cross-Exceptions

The Respondent asserts that the Judge erred in finding that the mediation of a

formal EEO complaint concerns a grievance within the meaning of § 7114(a)(2)(A)

of the Statute. Respondent's Cross-Exceptions & Opp'n at 7 (citing, inter alia,

Luke I). The Respondent also asserts that the mediation of a formal EEO

complaint is not a grievance for purposes of the Civil Rights Act and EEOC

rules, and that the Civil Rights Act and not the Statute "is the governing

statute." Id. at 8-9.

The Respondent also asserts that requiring it to provide the Union with notice

and an opportunity to be represented at the mediation of a formal EEO complaint

violates the Civil Rights Act, the Privacy Act, the ADR Act, Supreme Court

precedent, other federal court precedent, EEOC rules and mandates, EEOC case

law, and the Statute. See id. at 1. In this regard, the Respondent asserts that

the Civil Rights Act, EEOC rules and mandates, and case law are controlling and

mandate confidentiality during the EEO process. Id. at 4. The Respondent claims

that this mandate would be impossible if unions are allowed to attend the

mediation of formal EEO complaints.

D. GC's Opposition

The GC disputes the Respondent's assertion that a formal EEO complaint is not a

grievance within the meaning of § 7114(a)(2)(A) of the Statute. In this respect,

the GC contends that the Authority has repeatedly held that an employee's formal

EEO

complaint is a "grievance" that satisfies the subject matter requirement for a

formal discussion under § 7114(a)(2)(A) and that this position has been upheld

by the D.C. Circuit. GC's Opp'n at 4 (citing U.S. Dep 't of the Air Force, Luke

Air Force Base, Ariz. 59 FLRA 16, 23 (2003) (Chairman Cabaniss dissenting); Luke

II, 58 FLRA at 533-34; Dover, 57 FLRA at 308-09; Luke I, 54 FLRA at 730-32).

According to the GC, Authority and D.C. Circuit precedent supports the Judge's

determination that the authorities cited by the Respondent EEOC statutory and

regulatory authority, EEOC rules and guidelines, the Privacy Act, and the ADR

Act do not prohibit a union's presence at the mediation of a formal EEO

complaint. GC's Opp'n at 3 (citing Dover, 316 F.3d 280). Further, the GC notes

that the Authority subsequently confirmed that permitting a union to attend the

mediation of formal EEO complaints does not create a conflict with an employee's

right to confidentiality under the ADR Act, EEOC regulations, or the Privacy

Act. See GC's Opp'n at 3-4 (citing Luke II, 58 FLRA at 533-34). Finally, the GC

reiterates that the employee's objection to the Union's presence did not create

a direct conflict between the Union's institutional interests and the employee's

right to confidentiality.

IV. Analysis and Conclusions

A. The mediation of a formal EEO complaint concerns a "grievance" within

the meaning of ,S 7114(a)(2)(A) of the Statute.

In order for a union to have a right to be represented 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 SSA, Boston, 59 FLRA at 878;

Dover, 57 FLRA at 306; Luke I, 54 FLRA at 723.

There is no dispute that the mediation session was a discussion, which was

formal, between a representative of the Respondent and a unit employee. There

also is no dispute that the Respondent did not give the Union notice and an

opportunity to attend the session. Rather, the Respondent disputes the Judge's

finding that the mediation of the formal EEO complaint concerned a grievance. As

stated by the Judge, although the Ninth Circuit agrees with the Respondent's

position, see Luke Air Force Base v. FLRA, the D.C. Circuit and the Authority

have repeatedly rejected this approach and held that a formal EEO complaint is a

grievance within the meaning of § 7114(a)(2)(A). See, e.g., Dover, 316 F.3d 280

(D.C. Cir. 2003), affirming 57 FLRA 304; Luke I, 54 FLRA at 723. Consistent with

this D.C. Circuit and Authority precedent, we deny the Respondent's

cross-exception.

B. The Judge did not err by finding that the Union's presence at the

mediation would not conflict with the Civil Rights Act, the Privacy Act, the ADR

Act, EEOC statutory and regulatory authority, or EEOC rules and guidelines.

With regard to the Respondent's claim that the Union's presence would violate

the Civil Rights Act, the Privacy Act, the ADR Act, EEOC statutory and

regulatory authority, or EEOC rules and guidelines, the Authority and the D.C.

Circuit previously considered and rejected such claims. See, e.g., Luke II, 58

FLRA at 534-36; Dover,

316 F.3d at 286-87; Dover, 57 FLRA at 310. As found by the Judge, the Respondent

has "presented nothing persuasive that has not already been considered and

rejected by the Authority." Judge's Decision at 7. Accordingly, consistent with

the above-cited precedent, we deny the Respondent's cross-exception.

C. In the particular circumstances of this case, the employee's objection to the

Union's presence at the mediation did not provide a basis for the Respondent to

deny the Union's statutory right to notice and an opportunity to be present.

In fmding that the Union was not entitled to be present at the mediation, the

Judge relied on the fact that the employee objected to the Union being present,

effectively fmding that such an objection, standing alone, is sufficient to

trump the Union's formal-discussion rights. For the following reasons, we find

that the Judge's decision is not supported by applicable law.

As an initial matter, there are "important policies and purposes behind the

Statute's formal discussion right." Dover, 57 FLRA at 309. In this connection,

"unions have an established interest in how allegations of discrimination are

dealt with and resolved[.]" Id. Accord NTEU, 774 F.2d at 1188. In addition, "the

processing of an individual complaint through EEO procedures can have an effect

on the entire bargaining unit, which the union represents[.]" Dover, 57 FLRA at

309. In this connection, "by providing formal discussion rights for discrete

grievances and not just general personnel policies, the Statute recognizes that

the resolution of an individual employee complaint may have an impact on the

rights of other unit employees." Id. Accord Dep 't of Veterans Affairs, Denver,

Colo. v. FLRA, 3 F.3d 1386, 1390 (10 th Cir. 1993).

Although "neither the Authority nor the courts have ruled that unions have an

absolute right to attend discussions about EEO complaints[,]" Dover, 57 FLRA at

309 (emphasis added), the Authority and the courts also have not held that an

employee's objection, without more, is sufficient to deprive a union of its

formal-discussion right. 5 In this connection, as noted previously, the D.C.

Circuit has stated that "a direct conflict

5 In Luke I, the Authority noted the judge's undisputed finding that the

employee did not object to the union president's presence at EEO settlement

discussions. See 54 FLRA at 733. However, the Authority did not hold that an

employee's mere objection, without more, would provide a sufficient basis for

denying a union's statutory right to be present at EEO settlement discussions.

between the rights of an exclusive representative under § 7114(a)(2)(A) and the

rights of an employee victim of discrimination should ... presumablybe resolved

in favor of the latter." 316 F.3d at 286 (quoting NTEU, 774 F.2d at 1189 n.12

(emphasis added)). The D.C. Circuit also has stated that it did 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." Dover, 316 F.3d at 287 (emphasis

added). The referenced footnote from NTEU states that "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." Id. (emphasis added).

As discussed previously, the Judge found, based on credited testimony, that the

employee told the Respondent's EO Director that "the Union's presence would be a

waste of time[,]" and the employee checked a box on an ADR election form to

indicate that he did not want the Union to be present. Judge's Decision at

14-15. Neither the employee's comments to the EO Director nor his marking on the

ADR election form cites any statutory "rights" or explains why the Union's

presence would interfere with any such rights. We fmd that, absent such an

explanation, the employee's comments to the EO Director and his marking on the

form are not sufficient to demonstrate a direct conflict between the Union's

statutory right to be present and any individual rights, including the right to

complete relief in the EEO process. Thus, we find that the Respondent had no

basis for relying on the employee's comments to fmd such a direct conflict and

to thereby deny the Union's statutory right to notice and an opportunity to

attend.

In addition, at the hearing, the employee testified that he did not want the

Union to be present at the mediation session because he: (1) was upset that the

Union previously had refused to take one of his grievances to arbitration; and

(2) believed that the Union was entitled to be present and the mediation and was

curious to see how the Respondent would react to his objection. See Judge's

Decision at 13. As discussed above, the Judge found that these alleged

motivations were "of no consequence[]" because the employee did not communicate

them to the Respondent. Id. at 15. Even assuming that it is appropriate to

consider these alleged motivations in assessing whether there was a direct

conflict between the respective rights of the Union and the employee, they do

not establish the requisite direct conflict. In this connection, the employee's

testimony demonstrates a personal preference that the Union not be present, as

well as a desire to see how the Respondent would respond to his objection. It

does not cite any individual right or explain how the Union's presence would

interfere with, must less directly interfere with, any right. Moreover, we note

that, during the hearing, the employee specifically testified that his objection

was "not based on any concerns over confidentiality, privacy interests, or that

the Union's presence would disrupt the mediation process." Id. at 13. Thus, to

the extent that it is appropriate to consider the employee's hearing testimony,

that testimony does not demonstrate the requisite direct conflict between any

identified employee rights and the Union's statutory right to notice and an

opportunity to attend the mediation session.

For the reasons discussed above, we find that, in the particular circumstances

of this case, the employee's objection to the Union's presence at his mediation

session did not demonstrate a direct conflict between any identified, individual

right of the employee and the Union's statutory right to notice and an

opportunity to be present. 6 As there is no dispute that the Respondent failed

to give the Union notice and an opportunity to be present, as required by §

7114(a)(2)(A) of the Statute, we conclude that the Respondent violated §

7116(a)(1) and (8) of the Statute as alleged in the complaint.

V. Order

Pursuant to § 2423.4 1(c) of the Authority's Regulations and § 7118 of the

Federal Service Labor-Management Relations Statute, the United States Department

of the Air Force, Davis-Monthan Air Force Base, Tucson, Arizona, shall:

1. Cease and desist from:

(a) Failing or refusing to provide the American Federation of Government

Employees, Local 2924 (Union) 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 negotiations pertaining to

formal Equal Employment Opportunity (EEO) complaints filed by bargaining-unit

employees.

In any like or related manner, interfering with, restraining, or coercing

employees in the exercise of rights assured to them by the Federal Service

Labor-Management Relations Statute.

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

and policies of the Federal Service Labor-Management Relations Statute:

(a) Provide the Union advance notice and the opportunity to be represented at

formal discussions with bargaining-unit employees concerning mediation of formal

EEO complaints.

6 The dissent's claim that this case demonstrates "at least two specific

'conflicts' between the employee's rights and those of the Union" is

unpersuasive. Dissent, slip op. at 13. As for the first asserted conflict -that

the employee "chose not to have the Union present as an exercise of his rights

under Title VII to seek his own resolution of his own claim of

discrimination[,]" id. - there is no basis to conclude that the Union's presence

during the mediation session would affect the employee's pursuit of his

discrimination claim. In this regard, the Union would not attend as the

employee's representative and would have no right to interfere with settlement

efforts. As for the second asserted conflict - that the employee had the right

under § 7102 of the Statute to "refrain from" assisting the Union - no party has

raised this statutory argument. In addition, there is no basis for concluding

that an employee does anything to "assist" a union when an agency complies with

its obligation under the Statute to afford a union its right to attend a formal

discussion.

(b) Post at the United States Department of the Air Force, Davis-Monthan Air

Force Base, Tucson, Arizona, copies of the attached Notice to All Employees on

forms to be furnished by the Federal Labor Relations Authority. Upon receipt of

the forms, they shall be signed by the Commander, Davis-Monthan Air Force Base,

and they 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 such Notices

are not altered, defaced, or covered.

(c) Pursuant to § 2423.4 1(e) of the Authority's Regulations, notify the

Regional Director of the Denver Region, 1391 Speer Boulevard, Suite 300, Denver,

Colorado, 80204, in writing, within 30 days from the date 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 United States

Department of the Air Force, Davis-Monthan Air Force Base, Tucson, 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,

the American Federation of Government Employees, Local 2924 (Union), 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 negotiations pertaining to formal Equal Employment

Opportunity (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 them by the Federal Service

Labor-Management Relations Statute.

WE WILL provide the Union 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 the

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, Denver

Regional Office, whose address is: Federal Labor Relations Authority, 1391 Speer

Boulevard, Suite 300, Denver, Colorado, 80204, and whose telephone number is:

303-844-5224.

Member Beck, Dissenting:

The disposition of this case requires us to consider NTEU v. FLRA, 114 F.2d 1181

(D.C. Cir. 1985) {NTEU) and Dep 7 of the Air Force, 436th Airlift Wing, Dover

AFB v. FLRA, 316 F.3d 280 (D.C. Cir. 2003) (Dover). In NTEU, the Court

identified two possible scenarios: First, a "conflict" between the rights of an

employee claiming discrimination and the interests of the bargaining unit; and

second, a "direct conflict" between the rights of the employee claiming

discrimination and the rights of the union under 5 U.S.C. § 7114(a)(2)(A). The

Court noted that either type of conflict should be resolved in favor of the

employee. NTEU, 774 F.2d at 1189 n.12. *

Years later, in Dover, the Court referred back to the teaching ofNTEU but found

no "direct conflict" between the union's § 7114(a)(2)(A) rights and the

employee's rights largely because the employee did not object to a union

representative being present at the mediation of the employee's discrimination

claim. Dover, 316 F.3d at 286-87. In Dover, it was the agency not the employee

that asserted that the employee's Title VII rights took precedence over the

union's rights, and the agency did so to "evade" its obligations to notify the

union of the mediation session. Id. at 286. The instant case is materially

different from Dover; here, the record establishes that the employee made it

clear that he did not want the Union to be represented at his mediation session.

Judge's Decision at 14-15.

My colleagues find that the employee's testimony here does not "demonstrate[]" a

"direct conflict" with the rights of the Union. Majority, slip op. at 9. That

determination places a burden on the employee that was not intended or required

by the Court in either NTEU or Dover. Unlike the Majority, I do not agree that

the employee is required to meet any further burden once he asserts in clear and

unmistakable terms that he does not want the Union present during his mediation

session. The record demonstrates that the employee chose not to be represented

by the Union in the processing of his discrimination complaint; that he agreed

to participate in mediation in an attempt to resolve the complaint; that he told

a management official that he did not want the Union to be present at the

mediation; and that he signed a form stating specifically, "I object to having

the union's presence at the mediation and request they not be present." Judge's

Decision at 3-4.

The circumstances of this case demonstrate at least two specific "conflicts"

between the employee's rights and those of the Union. First, the employee chose

not to have the Union present as an exercise of his rights under Title VII to

seek his own resolution of his own claim of discrimination. Second, the employee

was free to "refrain from" assisting the Union in the exercise of the Union's §

7114(a)(2)(A) rights. 5 U.S.C. §7102.

* The unfair labor practice charge in NTEU asserted that the Agency violated §

7114(a)(2)(A) by failing to notify the Union of its interview of bargaining unit

employees in preparation for a hearing before the Merit Systems Protection

Board. NTEU, 774 F.2d at 1183.

As the Court said in Dover, § 7114(a)(2)(A) "does not yield a clear and

unambiguous interpretation." Dover, 316 F.3d at 285. Consequently, the job of

interpreting and applying this provision in particular circumstances is left to

the Authority. Our mandate from Congress is to do so "in a manner consistent

with the requirement of an effective and efficient Government." 5 U.S.C. § 7102.

To force parties to a mediation session to suffer the presence of an unwanted

third party is to diminish the efficiency and the likelihood of success of the

mediation session. Thus, interpreting § 7114(a)(2)(A) as the Majority does to

require an employee and his employing agency to include an unwanted union

representative in an EEO mediation session is inconsistent with the most

fundamental goal of our Statute.

I would deny the General Counsel's exceptions and dismiss the complaint.