Three's a crowd: why mandating union representation at mediation of federal employees' discrimination complaints is illegal and contrary to legislative intent.

• Author: Tuttle, Timothy J.

1. INTRODUCTION II. SUMMARY OF THE EEO COMPLAINT PROCESS III. SUMMARY OF MEDIATION PROCESS IV. STATUTORY AND REGULATORY MANDATES FOR USE OF ADR A. The Civil Rights Act Requires ADR B. EEOC Rules Mandate ADR V. STATUTORY AND REGULATORY REQUIREMENTS OF CONFIDENTIALITY A. The Civil Rights Act and Confidentiality of Information B. EEOC Rules and Rulings Mandate Confidentiality C. The ADRA Mandates Confidentiality of Mediation Sessions D. Disclosure of Information Regarding Discrimination Complaints Is Forbidden by The Privacy Act VI. THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS ACT DILEMMA VII. CASE LAW REQUIRING UNION REPRESENTATION AT MEDIATION OF REPRESENTED GOVERNMENT EMPLOYEE DISCRIMINATION COMPLAINTS A. Internal Revenue Service, Fresno v. Federal Labor Relations Authority 1. Summary of the IRS Fresno Decision 2. The Civil Rights Act and Confidentiality of Discrimination Complaints 3. The IRS Fresno Decision and Informal Resolution of Complaints 4. The Privacy Act Issue B. Luke Air Force Base v. Federal Labor Relations Authority 1. Summary of the Luke AFB Decision 2. Deference Granted to FLRA in Interpreting an EEOC Process 3. Decision Did Not Consider Whether Mediation Was a Formal Discussion 4. Failure to Rule on ADRA or the Privacy Act Issue C. Dover Air Force Base v. Federal Labor Relations Authority 1. Summary of the Dover AFB Decision 2. Incorrect Grant of Chevron Deference 3. A Grievance in the Context of the Civil Rights Act? 4. Failure to Consider Mediation Session as a Formal Discuss ion 5. Misplaced Reliance on NTEU 6. Dismissal of Administrative Dispute Resolution Act Argument 7. Dismissal of Privacy Act Argument VIII. THE FLRA SOLUTION IX. THE MORE COMPLETE ADMINISTRATIVE SOLUTION: EEOC LIMITATION OF UNION ATTENDANCE TO COMPLAINANT'S REPRESENTATIVE I. INTRODUCTION

   Section 717 of the Civil Rights Act prohibits discrimination by the federal government against applicants and employees based on race, color, religion, sex and national origin. (1) It is every federal agency's responsibility to ensure a discrimination-free workplace and to respond appropriately to discrimination complaints. A vital tool in responding to discrimination complaints in the workplace is mediation, which is an informal alternative dispute resolution (ADR) method in which both parties are encouraged to speak freely and to which confidentiality is key. In discrimination complaints brought by federal employees who are represented by bargaining units, however, the principles of mediation arguably come into conflict with a union's right of representation.

   Labor organizations which represent federal employees have the right to be present at formal meetings concerning grievances between members of a bargaining unit and management. (2) However, allowing union participation in meetings in which the mediation of discrimination complaints is conducted works against a "core principle" of ADR, confidentiality. Three court cases have weighed these competing interests with differing results. This article provides short summaries of the equal employment opportunity (EEO) complaint process and of how mediation works in general. Next, it analyzes the relevant statutory and administrative law concerning this issue. Finally, the article discusses the cases in which this issue was in dispute. The article focuses on the most recent, and most relevant, of the cases, the U.S. Court of Appeals for the District of Columbia's decision in Department of the Air Force, Dover Air Force Base v. Federal Labor Relations Authority. (3)

   The courts, particularly the Dover AFB court, have made several errors which have forced government agencies to invite unions to participate in mediation of discrimination complaints brought by its bargaining unit members. The courts' errors include: deferring to the Federal Labor Relations Authority (FLRA) (4) in its interpretation of a statutory process governed by the EEOC, failing to consider the text of the Civil Rights Act (Title VII) (5) in its analysis of a process mandated by that Act, using a Labor statute to determine if a process created by Title VII is a "formal" process, failing to look to either Title VII or the Federal Service Labor Management Relations Statute (FSLMRS) (6) to determine if a complaint made pursuant to Title VII is a "grievance" for the purpose of the FSLMRS, summarily dismissing the requirements of the Administrative Dispute Resolution Act (ADRA), and ignoring or mischaracterizing the mandates of the Privacy Act. (7) The result of the courts' misinterpretation of the law is a disincentive to enter into mediation by both the complainant and management. This disincentive is contrary to the individual complainant's right to have his or her allegation resolved appropriately, quickly, and at the lowest level possible. Additionally, the result of the Dover AFB case thwarts the purpose of the Civil Rights Act, to ensure a discrimination-free workplace.

   While this article argues a union does not have a right of representation at mediation of discrimination complaints brought pursuant to the Civil Rights Act, the article does not contend union officials should be prohibited from representing complainants when the complainants have chosen union officials as their personal representatives, or when the claims have been made pursuant to negotiated grievance procedures. Rather, this article contends that unions do not have an independent right to represent their own interests in mediation of discrimination complaints brought pursuant to Equal Employment Opportunity Commission (EEOC) regulations.

2. SUMMARY OF THE EEO COMPLAINT PROCESS

   A federal employee wishing to file a complaint of discrimination against his or her employer starts the process by meeting with an EEO counselor in his or her agency. This begins the pre-complaint process. (8) The EEO counselor will provide the employee notice of his or her rights and responsibilities and will conduct a limited inquiry into the allegations. (9) The agency has 30 days from the date of initial contact to conduct this inquiry. (10) During this pre-complaint phase of the process, the counselor is prohibited from revealing the identity of the complainant without his or her permission. (11) The counselor is instructed to encourage informal resolution of the dispute, to include ADR. If both parties agree to ADR, the pre-complaint period is extended to 90 days. (12) If the parties are unable to resolve the dispute, at the end of the pre-complaint period the counselor issues the complainant a notice of final interview, which discusses what occurred in regard to settlement attempts during the informal process, the individual's right to pursue the complaint through the formal process, and the requirements of a formal complaint. Upon receipt of notice of final interview, the complainant has 15 days to file a formal complaint of discrimination. (13)

   When a federal agency receives a formal complaint of discrimination, it analyzes the allegation to determine if the complainant has made a proper claim of discrimination. (14) The agency then sends the complainant a letter informing him or her if the complaint is accepted or dismissed. If the entire claim or a portion of the claim is accepted, the agency must investigate the claim and provide a report to the complainant within 180 days of the filing of the complaint. ADR is available during the formal complaint process as well as the pre-complaint process, and the investigators are encouraged to promote settlement discussions during the investigation. (15) The complainant's identity does not remain confidential in the investigatory process and may be disclosed to the persons the complainant has identified as being responsible for the allegedly discriminatory actions. (16) After receipt of the investigator's report, the complainant may elect either a hearing before an EEOC Administrative Judge or to receive a final decision from the agency. (17)

3. SUMMARY OF MEDIATION PROCESS

   Mediation is the most popular form of ADR by federal agencies and their employees in employment related disputes. (18) In mediation, a neutral third party who has no decision-making authority works with the parties to reach an acceptable resolution. During a mediation session, the mediator typically makes procedural suggestions to encourage settlement. A mediator can also make substantive suggestions to increase the range of solutions being considered by the parties. Usually, a mediator will work with the parties individually, in caucuses, to discuss potential solutions and to create proposals to present to the opposing party. These private sessions are vital, as parties often provide information to the mediator in these individual sessions which would not normally be shared with the other party. While the mediator cannot provide this information given in confidence to the opposing party, he or she can use the information to help fashion a settlement option acceptable to both sides.

   Confidentiality is vital to mediation. The EEOC's guidance on complaint processing states: "Confidentiality is essential to the success of all ADR proceedings ... Parties who know that their ADR statements and information 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 information." (19) Open discussion leads to better understanding of the issues on both sides and results in more satisfying solutions. Without confidentiality there is no open discussion; without open discussion an acceptable result to both sides is far less likely.

   While each mediator's goal is to enable the parties to create their own acceptable settlement of the issue, a mediator may be more or less directive in pursuing an agreement. Some mediators merely set the stage for bargaining...