No.
In the Supreme Court of the United States
October Term, 1999
_______________________________
FEDERAL LABOR RELATIONS AUTHORITY, PETITIONER
v.
LUKE AIR FORCE BASE, ARIZONA
_______________________________
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRIEF FOR THE RESPONDENT
FEDERAL LABOR RELATIONS AUTHORITY
DAVID M. SMITH*
Solicitor
JAMES F. BLANDFORD
Attorney
JUDITH A. HAGLEY
Attorney
Federal Labor Relations Authority
607 14th Street, N.W.
Washington, D.C. 20424-0001
(202) 482-6620
*Counsel of Record
QUESTION PRESENTED
Whether a union's statutory right to attend "any formal discussion" between
an agency employer and a bargaining unit employee regarding "any grievance"
includes discussions concerning the employee's discrimination complaint
filed under Equal Employment Opportunity Commission procedures.
TABLE OF CONTENTS
OPINIONS BELOW
JURISDICTION
STATUTORY PROVISIONS INVOLVED
STATEMENT
A. The Federal Service Labor-Management
Relations Statute
B. The Instant Case
1. Factual Background
2. Relevant Judicial and Administrative
Precedent
a. The Ninth Circuit's Decision
in IRS, Fresno v. FLRA
b. The D.C. Circuit's Decision
in NTEU v. FLRA
c. The Tenth Circuit's Decision
in VA, Denver v. FLRA
d. The Ninth Circuit's Decision
in VA, Long Beach v. FLRA
3. The Court of Appeals' Decision
in the Instant Case
REASONS FOR GRANTING THE PETITION
A. The Decision of the Court Below Conflicts
with That of Two Other Circuits and Another
Panel Within the Ninth Circuit
1. The Conflict is Direct
2. The Conflict Must Be Resolved
B. The Court of Appeals Erroneously Determined
That EEO Complaints Are Not Grievances for
Purposes of Section 7114(a)(2)(A)
1. The Express Language of the Statute
2. The Legislative History of the Statute
3. The Purpose of the Statute's Provisions
CONCLUSION
Appendices:
A. Opinion of the United States Court of Appeals
for the Ninth Circuit, December 30, 1999
B. The Court of Appeals for the Ninth Circuit's
Denial of the Agency's Petition for Rehearing
And Suggestion of Rehearing En Banc,
March 14, 2000
C. Decision and Order of the Federal Labor Relations
Authority in Luke Air Force Base, Arizona and
American Federation of Government Employees,
Local 1547, 54 FLRA 716 (1998)
D. Luke Air Force Base's Request for Publication,
January 10, 2000
E. Relevant Portions of the Federal Service
Labor-Management Relations Statute,
5 U.S.C. 7101-7135 (1994 & Supp. III 1997)
TABLE OF AUTHORITIES
Cases:
General Servs. Admin., Region 9 & American Fed'n of
Gov't Employees, Council 236, 48 FLRA 1348 (1994)
Bureau of Alcohol, Tobacco & Firearms v. FLRA,
464 U.S. 89 (1983)
Bureau of Gov't Fin. Operations, Headquarters,
15 FLRA 423 (1985)
Department of Veterans Affairs Med. Ctr. v. FLRA,
16 F.3d 1526 (9th Cir. 1994)
Department of Veterans Affairs v. FLRA,
3 F.3d 1386 (10th Cir. 1993)
Emporium Capwell Co. v. Western Addition Community Org.,
420 U.S. 50 (1974)
Federal/Postal/Retiree Coalition v. Devine,
751 F.2d 1424 (D.C. Cir. 1985)
Garner v. Teamsters Local Union No. 776,
346 U.S. 485 (1953)
Gustafson v. Alloyd Co., 513 U.S. 561 (1995)
Internal Revenue Serv., Fresno Serv. Ctr. v. FLRA,
706 F.2d 1019 (9th Cir. 1983)
Internal Revenue Service, Fresno Serv. Ctr.,
Fresno, Cal., 7 FLRA 371 (1981)
National Treasury Employees Union v. FLRA,
774 F.2d 1181 (D.C. Cir. 1985)
U.S. Dep't of Justice, Bureau of Prisons,
Fed. Correctional Inst. (Ray Brook, NY),
29 FLRA 584 (1987)
United States v. Nordic Village, Inc.,
503 U.S. 30 (1992)
In Re Yochum, 89 F.3d 661 (9th Cir. 1996)
Statutes, rules, and regulations:
Federal Service Labor-Management Relations Statute,
5 U.S.C. 7101-7135 (1994 & Supp. III 1997)
5 U.S.C. 7103
5 U.S.C. 7103(a)(9)
5 U.S.C. 7105(a)(1)
5 U.S.C. 7105(a)(2)
5 U.S.C. 7114(a)(2)(A)
5 U.S.C. 7116(a)(1)
5 U.S.C. 7116(a)(8)
5 U.S.C. 7121
5 U.S.C. 7121(a)
5 U.S.C. 7121(a)(2)
5 U.S.C. 7121(d)
5 U.S.C. 7121(e)
5 U.S.C. 7123(a)
28 U.S.C. 1254(1)
5 C.F.R. pt. 1201 (1997)
29 C.F.R. pt. 1614 (1999)
29 C.F.R. 1614.105(a) (1999)
29 C.F.R. 1614.105(g) (1999)
Miscellaneous:
H.R. Rep. No. 95-1403, at 40 (1978)
In the Supreme Court of the United States
OCTOBER TERM, 1999
_______________________________
FEDERAL LABOR RELATIONS AUTHORITY, PETITIONER
v.
LUKE AIR FORCE BASE, ARIZONA
_______________________________
PETITION FOR A WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
The Federal Labor Relations Authority (Authority) petitions for a writ of
certiorari to review the judgment of the United States Court of Appeals for the
Ninth Circuit.
OPINIONS BELOW
The unpublished judgment and opinion of the court of appeals is set forth at
App., infra, --.[1] The decision and order of the Authority (App., infra,
-) is reported at 54 FLRA 716.
JURISDICTION
The judgment of the court of appeals was entered on December 30, 1999. App.,
infra, --. A petition for rehearing was denied on March 14, 2000. Id. at
--. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).
STATUTORY PROVISIONS INVOLVED
The relevant portions of the Federal Service Labor-Management Relations
Statute, 5 U.S.C. 7101-7135 (1994 & Supp. III 1997) are reproduced in the
appendix. (App., infra, --)
STATEMENT
A. The Federal Service Labor-Management Relations Statute
The Federal Service Labor-Management Relations Statute (Statute) governs
labor-management relations in the federal service. Under the Statute, the
responsibilities of the Authority include adjudicating unfair labor practice
complaints, negotiability disputes, bargaining unit and representational
election matters, and resolving exceptions to arbitration awards. See 5
U.S.C. 7105(a)(1), (2); see also Bureau of Alcohol, Tobacco & Firearms v.
FLRA, 464 U.S. 89, 93 (1983) (BATF). The Authority thus ensures compliance
with the statutory rights and obligations of federal employees, labor
organizations that represent such federal employees, and federal agencies.
The Authority is further empowered to take such actions as are necessary and
appropriate to effectively administer the Statute's provisions. See 5
U.S.C. 7105(a)(2)(I); BATF, 464 U.S. at 92-93.
The Authority performs a role analogous to that of the National Labor
Relations Board (NLRB) in the private sector. See BATF, 464 U.S. at 92-93;
Federal/Postal/Retiree Coalition v. Devine, 751 F.2d 1424, 1430 (D.C. Cir.
1985). Congress intended the Authority, like the NLRB, "to develop
specialized expertise in its field of labor relations and to use that
expertise to give content to the principles and goals set forth in the
[Statute]." BATF, 464 U.S. at 97.
The Statute makes it an unfair labor practice for a federal agency employer
to, among other things, "interfere with, restrain, or coerce any employee in
the exercise by the employee of any right under [the Statute]," or
"otherwise fail or refuse to comply with any provision" of the Statute. 5
U.S.C. 7116(a)(1) and (8). The instant case involves an unfair labor
practice under section 7116(a)(1) and (8) and concerns the Authority's
interpretation of the representational right set forth in section 7114(a)(2)
(A) of the Statute.
Section 7114(a)(2)(A) provides that a federal agency is obligated to afford
the exclusive representative of an appropriate bargaining unit an
opportunity to attend "any formal discussion" regarding "any grievance." 5
U.S.C. 7114(a)(2)(A). The purpose of this statutory right is to "provide
the union an opportunity to safeguard its interests and the interests of
employees in the bargaining unit - viewed in the context of a union's full
range of responsibilities under the Statute." U.S. Dep't of Justice, Bureau
of Prisons, Fed. Correctional Inst. (Ray Brook, NY), 29 FLRA 584, 589 (1987)
(Ray Brook).
Specifically, the exclusive representative has a right to be represented at
such a discussion if there is (1) a discussion; (2) which is formal; (3)
between one or more representatives of the agency and one or more unit
employees or their representatives; (4) concerning any grievance or
personnel policy or practice or other general condition of employment. See
General Servs. Admin., Region 9 & American Fed'n of Gov't Employees, Council
236, 48 FLRA 1348, 1354 (1994).
The only element at issue in this case is the fourth - whether the
discussion concerned a "grievance." The Statute defines "grievance" as "any
complaint - (A) by any employee concerning any matter relating to the
employment of the employee." 5 U.S.C. 7103(a)(9). The question here is
whether an employee's discrimination complaint filed pursuant to the Equal
Employment Opportunity Commission's (EEOC) procedures (29 C.F.R. pt. 1614)
is a "grievance."
In interpreting the statutory representation right set forth in section
7114(a)(2)(A), the Authority has determined that discussions between an
agency employer and a bargaining unit employee about the employee's EEO
complaint concern a "grievance" as that term is used in section 7114(a)(2)
(A). App., infra, --. As such, when an agency employer holds a formal
discussion with a bargaining unit employee regarding that employee's EEO
complaint without affording the union adequate notice and an opportunity to
be represented, the agency violates section 7114(a)(2)(A) and commits an
unfair labor practice. See id. at --.
B. The Instant Case
1. Factual Background
This case is the most recent of a series of unfair labor practice cases
decided by the Authority and the courts of appeals concerning whether a
union has the right to be represented during a formal discussion of an
employee's complaint filed pursuant to a statutory procedure such as that
governing EEOC complaints or Merit Systems Protection Board (MSPB) appeals
(5 C.F.R. pt. 1201) (hereafter referred to as "alternative statutory
procedure") rather than pursuant to the grievance procedure established by
the parties' collective bargaining agreement. The case came before the
Authority due to events that occurred at Luke Air Force Base (Luke AFB),
Arizona.
The facts are not in dispute. The American Federation of Government
Employees, Local 1547 (the union) is the exclusive bargaining representative
for a unit of employees at Luke AFB. On January 19, 1995, representatives
of Luke AFB met with Tillie Cano, a bargaining unit employee, to discuss
settlement of her discrimination complaints filed pursuant to EEOC
procedures. Ms. Cano had named the union president as her representative,
and he had attended a meeting between Ms. Cano and agency representatives
the previous day. However, the union president was never told about the
January 19 meeting, and it was conducted without him. At this meeting, Ms.
Cano was presented with a proposed settlement and, after some negotiations
between her and representatives of the agency, a settlement was executed.
In response, the union filed an unfair labor practice charge with the
Authority, alleging that Luke AFB violated the Statute by not providing the
union with notice and opportunity to attend the meeting during which a
bargaining unit employee's EEO complaints were settled. The Authority held
that the January 19 meeting satisfied the elements of a formal discussion
and that Luke AFB failed to provide the union with the opportunity to
attend. Specifically, the Authority held that Ms. Cano's EEO complaints
constituted "grievances" within the meaning of section 7114(a)(2)(A). Id.
at -. Rejecting Luke AFB's assertion that under section 7114(a)(2)(A) a
matter cannot be a "grievance" where the parties have excluded it from their
negotiated grievance procedure (NGP), the Authority held that the broad
statutory definition of a "grievance" is not dependent on the scope of the
NGP.[2] Id. at -. The Authority, therefore, found that the agency violated
section 7116(a)(1) and (8) of the Statute by failing to provide the union
with notice and an opportunity to be represented at the January 19 session.
On review, the Ninth Circuit reversed the Authority, finding that
discrimination complaints brought pursuant to EEOC procedures are not
"grievances" within the meaning of section 7114(a)(2)(A) of the Statute.
The court also noted that the parties had excluded discrimination claims
from their NGP.
The Ninth Circuit decision was written against a background of conflicting
administrative and judicial precedent. Because the court's decision can
best be understood in this context, a brief history of the relevant
precedent is provided prior to analyzing the court's opinion in the instant
case.
2. Relevant Judicial and Administrative Precedent
Three circuit courts of appeals have considered the question whether
discussions between an agency employer and a bargaining unit employee about
the employee's complaint filed pursuant to alternative statutory procedures
concern a "grievance" as that term is used in section 7114(a)(2)(A). Two of
those circuits -- the United States Courts of Appeals for the District of
Columbia and Tenth Circuits -- agree with the Authority, the agency charged
with administering the Statute, that an employee's complaint filed under
alternative statutory procedures is a "grievance." However, the United
States Court of Appeals for the Ninth Circuit has created both an inter-
circuit and an intra-circuit conflict by holding that discussions concerning
discrimination complaints filed under EEOC procedures do not concern a
"grievance" within the meaning of section 7114(a)(2)(A).
a. The Ninth Circuit's Decision in IRS, Fresno v. FLRA
The Authority first considered whether a discussion regarding an EEO
complaint was a "formal discussion" within the meaning of section 7114(a)(2)
(A) of the Statute in Internal Revenue Service, Fresno Service Center,
Fresno, California, 7 FLRA 371 (1981) (Fresno Service Center). There the
Authority found that a counseling meeting[3] held to resolve an individual
employee's allegation of discrimination concerned a "grievance" and was a
"formal discussion." Id. at 374-75.
On review, the Ninth Circuit reversed the Authority. Internal Revenue
Serv., Fresno Serv. Ctr. v. FLRA, 706 F.2d 1019 (9th Cir. 1983) (IRS,
Fresno v. FLRA). The court held that the meeting was not a formal
discussion because: 1) the meeting was informal, noting the special
confidentiality concerns associated with the EEO counseling session;[4] and
2) the meeting did not concern a "grievance." With respect to the second
ground, the court found that the EEOC procedure is "unrelated to and
separate from" the NGP, noting that the parties' collective bargaining
agreement excluded discrimination complaints from the NGP. Id. at 1024. In
this regard, the court limited the term "grievance" as used in section
7114(a)(2)(A) to a grievance filed under the parties' NGP.
b. The D.C. Circuit's Decision in NTEU v. FLRA
After IRS, Fresno v. FLRA, the Authority adopted the reasoning of the Ninth
Circuit and held that the term "grievance" as used in section 7114(a)(2)(A)
did not include complaints filed pursuant to alternative statutory
procedures, such as proceedings before the MSPB and the EEOC. Bureau of
Gov't Fin. Operations, Headquarters, 15 FLRA 423, 426-30 (1985) (BGFO). The
discussion at issue in BGFO concerned an appeal before the MSPB.
The D.C. Circuit reversed the Authority. National Treasury Employees Union
v. FLRA, 774 F.2d 1181 (D.C. Cir. 1985) (NTEU v. FLRA). Relying principally
on the broad definition of "grievance" in section 7103(a)(9) of the Statute,
the court expressly disagreed with the Ninth Circuit and concluded that the
term "grievance" as used in section 7114(a)(2)(A) encompasses more than
matters that may be pursued under the NGP and includes complaints filed
under alternative statutory procedures. Id. at 1185-86, 1188. The court
also determined that a broad construction of "grievance" was consistent with
section 7121, which relates to grievance procedures. Id. at 1186-88.
Citing the reasoning of the D.C. Circuit in NTEU v. FLRA, the Authority
subsequently returned to its view in Fresno Service Center. See Ray Brook,
29 FLRA at 590. Accordingly, the Authority held that the term "grievance,"
as used in section 7114(a)(2)(A), encompasses alternative statutory
procedures. Id.
c. The Tenth Circuit's Decision in VA, Denver v. FLRA
The Authority's position that a "grievance" within the meaning of section
7114(a)(2)(A) includes alternative statutory procedures was upheld by the
Tenth Circuit in Department of Veterans Affairs v. FLRA, 3 F.3d 1386 (10th
Cir. 1993) (VA, Denver v. FLRA). The discussion at issue in VA, Denver v.
FLRA concerned an MSPB appeal. There the court cited with approval the D.C.
Circuit's NTEU v. FLRA decision, id. at 1390, and attempted to distinguish
IRS, Fresno v. FLRA by asserting that IRS, Fresno turned on the fact that
the EEO proceeding was at the counseling stage, id. at 1391.
d. The Ninth Circuit's Decision in VA, Long Beach v. FLRA
After IRS, Fresno v. FLRA, but well before deciding the instant case, the
Ninth Circuit found that an MSPB appeal was a grievance within the meaning
of section 7114(a)(2)(A). Department of Veterans Affairs Med. Ctr. v.
FLRA, 16 F.3d 1526, 1536 (9th Cir. 1994) (VA, Long Beach v. FLRA). Like the
D.C. Circuit in NTEU v. FLRA, the court began its analysis with the broad
statutory definition of grievance. 16 F.3d at 1533.
By finding that "grievance" is not limited to complaints processed through
the NGP but also includes complaints processed through alternative statutory
procedures, the VA, Long Beach v. FLRA court created an intra-circuit
conflict with and cast doubt on the validity of IRS, Fresno v. FLRA.
Although attempting to distinguish IRS, Fresno v. FLRA, the court stated in
VA, Long Beach v. FLRA that "we note that the reasoning of the District of
Columbia circuit in [NTEU v. FLRA], rejecting the [IRS, Fresno v. FLRA]
analysis, is more persuasive." 16 F.3d at 1534 n.4.
3. The Court of Appeals' Decision in the Instant Case
After the Authority found that the agency violated the Statute by not
notifying the union of the meeting to discuss the employee's EEO complaint,
Luke AFB petitioned the Ninth Circuit for review. Finding the case
controlled by IRS, Fresno v. FLRA, the court granted the petition for review
and denied the Authority's cross-application for enforcement. App., infra,
-. The court held that an EEO complaint was not a grievance because it was
filed pursuant to the EEOC's procedures. The court also noted that the
parties had excluded discrimination complaints from their NGP. The court
did not address VA, Long Beach v. FLRA or its tension with IRS, Fresno v.
FLRA.
On March 14, 2000, the court denied the Authority's petition for rehearing
and petition for rehearing en banc. App., infra, -.
REASONS FOR GRANTING THE PETITION
The Court should grant the petition for certiorari to resolve the intra- and
inter-circuit conflict on the issue of whether a union's right to
representation during an agency's formal discussion with an employee applies
to discussions regarding claims filed pursuant to alternative statutory
procedures. The lower courts have disagreed on the question of the union's
right to attend formal discussions that relate to these procedures -- an
issue of exceptional importance to unions, agencies, and employees. As the
Department of Justice on behalf of Luke AFB explained to the Ninth Circuit
regarding this case, union representation during EEO sessions is a
"recurring issue of 'substantial public importance' that is of interest to
all components of the Federal Government." Luke Air Force Base's Request
for Publication, dated January 10, 2000, App., infra, at -.
This case presents the Court with the opportunity to resolve the current
conflict and provide uniform guidance to the federal employment community.
By deciding this question, the Court can clarify the unions' important
representational right to attend formal discussions as it relates to
alternative statutory procedures.
A. The Decision of the Court Below Conflicts with That of Two Other
Circuits and Another Panel Within the Ninth Circuit
1. The Conflict Is Direct
The decision of the court of appeals is in direct conflict with the D.C.
Circuit's decision in NTEU v. FLRA and the Tenth Circuit's decision in VA,
Denver v. FLRA. The decision below was based exclusively on the Ninth
Circuit's IRS Fresno v. FLRA decision, with which the D.C. Circuit has
expressly disagreed. Specifically rejecting IRS, Fresno v. FLRA's
conclusion that "the term 'grievance' . . . include[s] only disputes
governed by a negotiated grievance procedure," NTEU v. FLRA, 774 F.2d at
1188, the D.C. Circuit has held that a meeting concerning a statutory appeal
to the MSPB concerned a grievance within the meaning of section 7114(a)(2),
regardless of availability of the NGP, id. at 1185 n.5.
"[G]reatly persuaded by the reasoning of [NTEU v. FLRA]," the Tenth Circuit
has also held that the term "grievance" as used in section 7114(a)(2)(A)
encompasses complaints filed under alternative statutory procedures as well
as matters pursued through an NGP. VA, Denver v. FLRA, 3 F.3d at 1390-91.
Adopting the reasoning of the D.C. Circuit, the Tenth Circuit found that
limiting the reach of "grievance" to the NGP - as the court below did here -
"is too narrow a reading of [section] 7114(a)(2)(A)." Id. at 1391.
The conflict regarding the meaning of "grievance" in section 7114(a)(2)(A)
reflects a significant disagreement over the role of unions in the federal
workplace. In IRS, Fresno v. FLRA, the Ninth Circuit stated that a union's
function is limited to the negotiated grievance mechanism and that the union
has "no such institutional role in the EEOC process." 706 F.2d at 1025.
The D.C. Circuit has rejected this finding, stating that it views "the
interest of unions under the [Statute] as potentially far broader." NTEU v.
FLRA, 774 F.2d at 1188. See also VA, Denver v. FLRA, 3 F.3d at 1390
(section 7114(a)(2)(A) "recognizes that the resolution of an individual
employee complaint may have an impact on the rights of other unit
employees").
The D.C. Circuit emphasized that regardless of the forum in which an
employee opts to bring his complaint, a union has an interest in the fair
treatment of unit members and any allegation of unfair treatment triggers
that interest. See id. Further, resolving individual complaints affects
other employees, whether that resolution takes place in the NGP or an
alternative statutory procedure. For example, a remedy for one employee may
result in decreased opportunities for others. Id. In addition,
determinations with respect to what constitutes an unjust employment action
in one case may affect the rights and expectations of other employees in
similar circumstances. Id. As the D.C. Circuit stated, these effects are
present whether the aggrieved employee pursues the matter through the NGP or
through an alternative statutory procedure. Id.
Not only does the decision in this case conflict with two other circuits, it
is also inconsistent with other Ninth Circuit precedent. VA, Long Beach v.
FLRA -- where the Ninth Circuit held that an MSPB complaint is a "grievance"
-- cannot be reconciled with Luke AFB v. FLRA and IRS Fresno v. FLRA, which
found that an EEOC complaint is not a "grievance."[5] This inconsistency
resulted from the two panels taking a different view of the meaning of
grievance in section 7114(a)(2)(A). The court in VA, Long Beach v. FLRA
noted that the Statute defines "grievance" "extremely broadly." 16 F.3d at
1533. This broad definition does not limit "grievance" to matters raised
through the parties' NGP, as the Ninth Circuit suggests in Luke AFB v. FLRA
and IRS, Fresno v. FLRA.
2. The Conflict Must Be Resolved
The conflicting decisions of the various circuits create significant
difficulties. First, there is a need for uniformity in construing federal
law that regulates federal sector labor-management relations. Such
uniformity in the application of statutory rules and procedures has long
been recognized by this Court with regard to the private sector. See Garner
v. Teamsters Local Union No. 776, 346 U.S. 485, 490 (1953).
Further, continuation of this conflict will necessarily proliferate
litigation and uncertainty within the federal sector labor relations
community, and thereby drain resources of federal agency employers and the
unions that represent federal employees, as well as burden the FLRA and the
courts. These difficulties are in large measure due to the uncertain venue
provisions of the Statute. Under section 7123(a), a person aggrieved by a
final order of the Authority may "institute an action for judicial review of
the Authority's order in the United States court of appeals in the circuit
in which the person resides or transacts business or in the United States
Court of Appeals for the District of Columbia." 5 U.S.C. 7123(a).
Accordingly, in any case arising outside the geographical jurisdiction of
the D.C. Circuit, there will be at least two available venues for resolution
of a labor dispute.
When, as here, an agency's offices are located within the geographical
jurisdiction of the Ninth Circuit, both the Ninth and D.C. Circuits are
potential available venues for judicial determinations. These agencies and
the exclusive representatives of employees in such agencies will be unsure
of their rights and obligations regarding formal discussions involving
alternative statutory procedures because any decision of the Authority will
be inconsistent with the precedent of a potential reviewing court.
B. The Court of Appeals Erroneously Determined That EEO Complaints Are Not
Grievances for Purposes of Section 7114(a)(2)(A)
In the instant case, the panel relied on IRS, Fresno v. FLRA and found that
complaints brought pursuant to EEOC procedures are not "grievances" within
the meaning of section 7114(a)(2)(A). App., infra, -. In IRS, Fresno v.
FLRA, the Ninth Circuit held that a "grievance," for the purposes of section
7114(a)(2)(A), does not encompass complaints brought pursuant to EEOC
procedures, because EEOC procedures are "unrelated to and separate from the
contractual grievance process." IRS, Fresno, 706 F.2d at 1024. As
demonstrated below, this excessively narrow interpretation of the Statute's
definition of "grievance" is inconsistent with the express terminology,
legislative history, and purpose of the provisions of the Statute under
consideration.
1. The Express Language of the Statute
Section 7114(a)(2)(A) of the Statute broadly provides for union attendance
at meetings concerning "any grievance." To ascertain the scope of the term
"grievance" in section 7114(a)(2)(A), the first place to look is the
Statute's express definition of "grievance." See Gustafson v. Alloyd Co.,
513 U.S. 561, 570 (1995) ("[I]dentical words used in different parts of the
same act are intended to have the same meaning.") (internal quotation marks
omitted); In Re Yochum, 89 F.3d 661, 666 (9th Cir. 1996) ("[I]n statutes
that contain statutory definition sections, it is commonly understood that
such definitions establish meaning wherever the terms appear in the same
Act.") (citation omitted).
The express language of section 7103(a)(9) provides no basis for limiting
the definition of "grievance," as the court below did here, so as to exclude
complaints brought pursuant to alternative statutory procedures. To the
contrary, the Statute defines "grievance" in the most inclusive terms.
Section 7103, the Statute's definition section, provides in relevant part
that:
'grievance' means any complaint-
(A) by any employee concerning any matter relating to the employment of the
employee[.]
5 U.S.C. 7103(a)(9)(A) (emphasis added). Accordingly, the Statute's broad
definition of "grievance" encompasses any employment-related complaint,
regardless of the forum in which the complaint may be pursued. Congress's
repeated use of the modifier "any" underscores its intent that the definition be
as inclusive as possible. In this case, Ms. Cano's complaint that she was the
victim of illegal discrimination by her employing agency is undeniably a
"complaint by [an] employee concerning [a] matter relating to [her employment],"
i.e., a "grievance" under the Statute's definition.
Section 7121, the Statute's section providing for NGPs, also provides no
basis for limiting the definition of "grievance" as the court below did. On
the contrary, section 7121 indicates specifically that a "grievance"
includes both those complaints filed through the NGP and those filed through
alternative statutory procedures. Subsections 7121(d) and (e) provide that
"aggrieved employees" affected by illegal discrimination within the
jurisdiction of the EEOC, or subject to conduct or performance-based adverse
actions within the jurisdiction of the MSPB, may raise these matters under
either a statutory procedure or an NGP, but not both. 5 U.S.C. 7121(d),
(e). As the D.C. Circuit held with regard to these subsections:
[I]f the term "grievance" referred only to disputes pursued through [NGPs], §
7121(d) and (e) would not be worded to require an "aggrieved employee" (emphasis
supplied) to elect to pursue a remedy under either a negotiated procedure or a
statutory procedure. An "aggrieved employee" - i.e., one with a grievance -
would by definition necessarily pursue his grievance under a negotiated
procedure.
NTEU v. FLRA, 774 F.2d at 1187.
Section 7121(a)'s reference to subsections 7121(d) and (e) in discussing the
scope and exclusivity of NGPs also indicates that a "grievance" includes
complaints filed under alternative statutory procedures. Section 7121(a)
provides that any collective bargaining agreement shall include procedures
for the "settlement of grievances." These procedures, however, are not
entirely exclusive. Section 7121(a) states in this regard that an NGP's
procedures "shall be the exclusive administrative procedures for resolving
grievances which fall within [the NGP's] coverage," "[e]xcept as provided in
subsections (d) [and] (e) . . . of this section" (emphasis added).
Accordingly, this section recognizes that discrimination complaints filed
under alternative statutory procedures are in fact "grievances" and provides
that this class of grievances may be processed through either a contractual
or a statutory procedure. See NTEU v. FLRA, 774 F.2d at 1187-88 ("[T]he
statutory procedures referred to in § 7121(d) and (e) are also procedures
for resolving grievances.").
Finally, the court below erred when it found relevant the fact that in this
case EEO matters were excluded from the scope of the parties' NGP. A
particular subject matter may be a grievance for the purpose of a union's
"formal discussion" right even though it cannot be processed through the
contractual grievance procedure. The language of section 7121(a) fully
supports this analysis through the use of the phrase "grievances which fall
within [an NGP's] coverage." This wording necessarily means that there may
be "grievances" that are outside the NGP's coverage. Any other
interpretation would render the phrase meaningless. See United States v.
Nordic Village, Inc., 503 U.S. 30, 36 (1992) ("[A] statute must, if
possible, be construed in such fashion that every word has some operative
effect.") (citations omitted) . In this case, EEO matters remain
grievances for the purpose of section 7114(a)(2)(A) formal discussion rights
-- they just cannot be processed through the NGP.
2. The Legislative History of the Statute
In addition to the Statute's express terms, the Statute's legislative
history also supports the Authority's construction of the Statute.
Commenting on what was to become the definition of "grievance," the House
Report stated that "[i]t should be noted that, although this subsection is
virtually all-inclusive in defining 'grievance' section 7121 excludes
certain grievances from being processed under a negotiated grievance
procedure, thereby limiting the net effect of the term." H.R. Rep. No.
95-1403, at 40 (1978). As the D.C. Circuit found, "[t]he only plausible
reading of the sentence . . . is that § 7121 ensures that some grievances
cannot be processed under [an NGP]." NTEU v. FLRA, 774 F.2d at 1188. By
recognizing that some grievances are excluded from the NGP, the passage
makes clear that the term "grievance" should not be limited to matters
covered by an NGP.
3. The Purpose of the Statute's Provisions
Finally, the lower court ignores an important purpose behind the Statute's
formal discussion right. As explained by the Tenth Circuit, the Statute, by
providing formal discussion rights for discrete "grievances" and not just
general personnel policies, "recognizes that the resolution of an individual
employee complaint may have an impact on the rights of other unit
employees." VA, Denver v. FLRA, 3 F.3d at 1390. In contrast, here the
court below took too narrow a view of the union's role in the workplace,
relegating unions to the role of mere grievance-processors.
As this Court has recognized, unions have an important role in eradicating
employment discrimination. See Emporium Capwell Co. v. Western Addition
Community Org., 420 U.S. 50, 69 (1974) ("[E]limination of discrimination and
its vestiges is an appropriate subject of bargaining . . . ."). In finding
that a union has no institutional interest in the processing and resolution
of an individual's discrimination complaint, the Ninth Circuit ignores the
effects that such matters have on the entire bargaining unit. As noted by
the NTEU v. FLRA court, unions have an established interest in how
allegations of discrimination are dealt with and resolved, regardless of the
forum in which the employee chooses to lodge the complaint. 774 F.2d at
1188.
In sum, the Statute provides a broad definition of "grievance" that includes
complaints processed pursuant to alternative statutory procedures that may
or may not also be processed through NGPs. The statutory definition
controls the term's use in section 7114(a)(2)(A). Therefore, contrary to
the conclusion of the court below, a meeting concerning a complaint filed
under an alternative statutory procedure, such as the EEO complaint in this
case, constitutes a formal discussion within the scope of that section.
Moreover, union attendance at such meetings furthers the purpose behind
section 7114(a)(2)(A).
Two courts of appeals and one panel of the Ninth Circuit have agreed with
the Authority on this issue and rejected the analysis that served as the
basis of the decision in the instant case. This Court should grant the
petition for certiorari and resolve the conflict among the courts of
appeals.CONCLUSION
The petition for a writ of certiorari should be granted.[6] Respectfully
submitted,
DAVID M. SMITH*
Solicitor
JAMES F. BLANDFORD
Attorney
JUDITH A. HAGLEY
Attorney
* Counsel of Record
JUNE 2000
IN THE SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1999
No.
_______________________________
FEDERAL LABOR RELATIONS AUTHORITY, PETITIONER
v.
LUKE AIR FORCE BASE, ARIZONA
_______________________________
CERTIFICATE OF SERVICE
It is hereby certified that this 5th day of June, 2000, all parties required
to be served have been served copies of the PETITION FOR A WRIT OF
CERTIORARI by the methods indicated below:
HAND DELIVERY
Seth P. Waxman, Esq. William Kanter, Esq.
Solicitor General Department of Justice
Department of Justice Appellate Staff
950 Pennsylvania Ave., N.W. Civil Division
Room 5259 Room 9102
Washington, D.C. 20530-0001 601 D Street, N.W.
Washington, D.C. 20530
FEDERAL EXPRESS
Kevin M. Grile.
Assistant General Counsel
American Federation of
Government Employees, AFL-CIO
449 North Clark St., Room 300
Chicago, IL 60610
__________________________
DAVID M. SMITH
Solicitor
Federal Labor Relations Authority
607 14th Street, N.W.
Washington, D.C. 20424
(202) 482-6620
Counsel of Record
[1] The court's denial of the Authority's petition for rehearing and
suggestion of rehearing en banc is also appended to the petition. App., infra,
--.
[2] Under 5 U.S.C. 7121(a)(2), a grievance procedure negotiated as part of
a collective bargaining agreement "may exclude any matter from the application
of the grievance procedures which are provided for in the agreement." As
authorized by this section of the Statute, the collective bargaining agreement
between the Union and Luke AFB excluded discrimination complaints from the scope
of the NGP.
[3] Individuals who believe that they have been discriminated against must
first consult with a counselor in an effort to "informally resolve the matter."
29 C.F.R. 1614.105(a) (1999).
[4] During this initial stage of the discrimination complaint process, the
EEO counselor is not permitted to reveal the identity of the aggrieved person,
absent authorization from the individual seeking counseling. 29 C.F.R.
1614.105(g) (1999).
[5] The circuit conflict cannot be reconciled by reasoning that Luke AFB
v. FLRA and IRS, Fresno v. FLRA involved discrimination complaints under the
auspices of the EEOC and those at issue in the other cases involved MSPB
appeals. First, although VA, Denver v. FLRA and NTEU v. FLRA both involved MSPB
appeals, the courts' rationale in those cases was not limited to such appeals,
but instead applied to alternative statutory procedures in general. See VA,
Denver v. FLRA, 3 F.3d at 1390-91. Second, no court has suggested that there is
a principled difference, with respect to the meaning of the statutory term
"grievance," between appeals to the MSPB and complaints under EEOC procedures.
As such, the fact that a particular case involves either EEOC or MSPB procedures
is not a basis for applying the Statute's formal discussion rights differently.
[6] The Solicitor General authorizes the filing of this petition.