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

I.    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.

II. 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)

III. 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, make few procedural suggestions, and intervene only in the event of an impasse. Other mediators may choose to become more actively involved in providing substantive suggestions for resolution to the parties. Regardless of their style, the mediator's goal is to get the parties to the dispute create their own solution to the issue. In order to achieve this goal, open collaboration is necessary.

IV. STATUTORY AND REGULATORY MANDATES FOR USE OF ADR

A. The Civil Rights Act Requires ADR

The Civil Rights Act explicitly directs federal agencies to attempt ADR to informally resolve discrimination complaints when possible:
   If the Commission determines after such investigation
   that there is reasonable cause to believe that the charge
   is true, the Commission shall endeavor to eliminate any
   such alleged unlawful employment practice by informal
   methods of conference, conciliation, and persuasion. (20)


There is no clearer indication of the meaning of a law than the text of a statute. "[T]he meaning an ordinary speaker of the English language would draw from the statutory text is the alpha and omega of statutory interpretation." (21) Since the text of the Civil Rights Act dictates an attempt at informal resolution of potentially meritorious claims, it is clear the drafters intended the methods listed be attempted and be informal.

The definition of the informal methods mandated by the Civil Rights Act further illustrates the point; Black's Law Dictionary defines the terms as follows:
   Conference. A meeting of several persons for
   deliberation, for the interchange of opinion, or for the
   removal of differences or disputes; (22)

   Conciliation. The adjustment and settlement of a
   dispute in a friendly, unantagonistic manner. Used in
   courts before trial with a view towards avoiding trial
   and in labor disputes before arbitration. See
   Arbitration; Court of Conciliation; Mediation; Pre-trial
   conference; Settlement. (emphasis added) (23)

   Persuasion. The act of persuading; the act of
   influencing the mind by arguments or reasons offered,
   or by anything that moves the mind or passions, or
   inclines the will to a determination. (24)


These definitions make clear Congress was intending agencies attempt methods such as mediation, which is specifically mentioned in the definition of conciliation, throughout the process to try to settle claims of discrimination informally. (25)

B. EEOC Rules Mandate ADR

In addition to the statutory mandate contained within the text of the Civil Rights Act, EEOC rules also require that federal agencies create ADR programs for the settlement of discrimination complaints. EEOC regulations direct agencies to "maintain a continuing affirmative program to promote equal opportunity and to identify and eliminate discriminatory practices and policies" (26) and to "[e]stablish and maintain an alternative dispute resolution program." (27) The ADR program "must be available for both the pre-complaint process and the formal complaint process." (28)

The courts, and other federal agencies, should defer to EEOC regulations in the processing of complaints filed under the Civil Rights Act. Yielding to the authority of a federal agency in carrying out the mandates of its founding statute is known as Chevron deference. Chevron deference is described as follows: "When Congress has 'explicitly left a gap for an agency to fill, there is an express delegation of authority to the agency to elucidate a specific provision of the statute by regulation,' and any ensuing regulation is binding in the courts unless procedurally defective, arbitrary or capricious in substance, or manifestly contrary to the statute." (29)

The Civil Rights Act gives the EEOC authority to create rules and regulations, (30) which is sufficient to accord it Chevron deference. "We hold that administrative implementation of a particular statutory provision qualifies for Chevron deference when it appears that Congress delegated authority to the agency generally to make rules carrying the force of law, and that the agency interpretation claiming deference was promulgated in the exercise of that authority." (31) Since the EEOC rules mandate agencies create an ADR program which must be available throughout the EEO complaint process, and since Congress delegated the authority for these matters to the EEOC, federal agencies must follow these rules and the courts should defer to them.

V. STATUTORY AND REGULATORY REQUIREMENTS OF CONFIDENTIALITY

A. The Civil Rights Act and Confidentiality of Information

The Civil Rights Act not only mandates an attempt at informal resolution of discrimination complaints, it also mandates confidentiality in regard to information elicited during informal resolution attempts. The text of the Civil Rights Act speaks directly to the importance of keeping information disclosed in ADR sessions conducted to resolve discrimination complaints private. Referring to mandated ADR sessions:
   Nothing said or done during and as part of such
   informal endeavors may be made public by the
   Commission ... Any person who makes public
   information in violation of this subsection shall be fined
   not more than $1,000 or imprisoned for not more than
   one year, or both. (32)


Clearly, the Civil Rights Act requires confidentiality in both the processing of discrimination complaints and in ADR sessions held pursuant to those complaints. In fact, the Act makes all information regarding the complaint confidential, "[c]harges shall not be made public by the Commission," (33) and even provides for criminal penalties as punishment for the release of information pertaining to discrimination complaints.
   It shall be unlawful for any officer or employee of the
   Commission to make public in any manner whatever
   any information obtained by the Commission pursuant
   to its authority under this section prior to the institution
   of any proceeding (34).... Any officer or employee of
   the Commission who shall make public in any manner
   whatever any information in violation of this subsection
   shall be guilty, of a misdemeanor and upon conviction
   thereof, shall be fined not more than $1000, or
   imprisoned not more than one year. (35)


The Supreme Court weighed in on the confidentiality provisions of the Civil Rights Act in Equal Employment Opportunity Commission v. Associated Dry Goods Corp. (36) In Assoc. Dry Goods, the lower court ruled on the issue of whether the parties in the dispute, the complainant and the respondent and their representatives, were considered part of the "public" to which disclosure of information regarding the complaint was forbidden. The Supreme Court held the parties should not be considered part of the public as understood in the Civil Rights Act, thus the information could be disclosed. (37)

Whether agencies should be required to allow union representation in mediation of discrimination complaints was not at issue in Assoc. Dry Goods, (38) but the Court's reasoning illuminates how to determine who should be allowed to receive information about complaints.
   Section 706(b) states that "[c]harges shall not be made public." 42
   U.S.C. [section] 2000e-5(b). The charge, of course, cannot be
   concealed from the charging party. Nor can it be concealed from the
   respondent, since the statute also expressly requires the
   Commission to serve notice of the charge upon the respondent within
   10 days of its filing. Thus, the "public" to whom the statute
   forbids disclosure (39) of charges cannot logically include the
   parties to the agency proceeding. And we must infer that Congress
   intended the same distinction when it used the word "public" in
   [section] 709(e), 42 U.S.C. [section] 2000e-8(e). (40)


The Court in Assoc. Dry Goods acknowledged the Civil Rights Act prohibited release of information regarding discrimination complaints to the public. However, the statute does not define "public." (41) The Court recognized the absurdity of the conclusion that Congress meant to restrict the information from the charging party, for it was the source of the information in the complaint. The Court also decided Congress could not have meant to prohibit the EEOC from releasing the information regarding the charge to the respondent because another section of the statute requires the EEOC to serve notice of the charge on that party.

This decision does not explicitly say only the charging party, the respondent, and their representatives are allowed to receive information regarding a discrimination complaint. However, the reasons Congress intended to distinguish the parties from the general public, as identified by the Court, apply to no other individual or group. No other groups or individuals are the source of the complaint, nor are any other groups or individuals statutorily mandated to be informed of the complaint. Certainly neither reason for disclosing the information would apply to a complainant's union, unless the claimant selected a union official as his or her representative in the complaint process, as discussed earlier in this article. In that situation, the union official would have the same right to information regarding the complaint as the complainant or any other chosen representative.

Additionally, the Assoc. Dry Goods Court cited legislative history from the creation of the Civil Rights Act to explain the prohibition against releasing complaint information.
   Senator Humphrey, the cosponsor of the bill, explained
   that the purpose of the disclosure provisions was to
   prevent wide or unauthorized dissemination of
   unproved charges.... "The amendment ... is aimed at
   the making available to the general public of unproven
   charges." (42)

   ....

   The other cosponsor of the Senate bill, Senator Dirksen,
   explained [section] 706(b)'s prohibition of any "public"
   disclosure of matters revealed during informal
   conciliation attempts as follows: "The maximum
   results from the voluntary approach will be achieved if
   the investigation and conciliation are carried on in
   privacy." (43)


Disclosing information regarding discrimination complaints to unions, or to any of the complainants' or alleged perpetrators' coworkers, is contrary to the Civil Rights Act's legislative intent as illuminated by the Court. Senator Humphrey's statement indicates Congress understood the damage that unproven allegations can cause. This is particularly true if the charges are spread throughout a workplace where it is likely the complainant, the subject of the complaint, and the union officials all work.

Senator Dirksen's explanation demonstrated Congress recognized the importance of privacy when working through the complex and sometimes embarrassing issues involved in discrimination complaints. Bringing a third party, which represents neither the complainant nor the subject of the complaint but its own interests, into the process reduces the likelihood that the parties will be "forthcoming and candid, without fear that frank statements may later be used against them" which is the stated intention of EEOC's ADR Policy Statement confidentiality mandate. (44) There may be no other party whose presence might cause management to be less "forthcoming and candid" (45) than the union, except perhaps the press.

If a union is allowed to attend all mediation sessions regarding discrimination complaints filed by the employees it represents, it could be involved in virtually all EEO mediation sessions. If a union had information from a complaint which supported a different employee's position in a later claim, the union would have a direct conflict; the confidentiality of the information received in the mediation session versus the duty to represent the interests of all bargaining unit employees. Management, knowing this and not willing to trust the union to resolve the issue in favor of not using the information, would likely choose not to divulge the information in the first place.

Information gained in a mediation session need not be used in a subsequent mediation to give a union leverage. A leak to the press regarding an admission of fault or an embarrassing incident would be far more damaging than the matter arising in another complaint. Even the possibility of such an action could shift the balance of bargaining power to the point that management may be unwilling to be fully open in mediation sessions where union representatives are present.

Even if union officials were legally bound not to disclose information they receive in mediation sessions, it would not eliminate the incentive for agencies to limit the information they disclose. While you can forbid an individual from publicly disclosing information and punish them for doing so, it is much more difficult to police the internal dispersal of information within an organization like a union. Once a union had information perceived damaging toward management, (i.e. like the agency's admission that a supervisor made sexist comments), they may have a significant incentive to use that information to embarrass or leverage management. An argument could be made that by not using such information to gain leverage which would provide benefits to the bargaining unit as a whole, the union is not fulfilling its duty to represent the entire unit. Regardless, agencies are not going to trust the union to "do the right thing" and not use information they gain during mediation any more than the union is likely to trust management reciprocally. This lack of trust is neither party's fault; it simply arises from the nature of the relationship. Requiring the presence of a union official during an EEO mediation works against the goal of an open and honest discussion between the complainant and management. (46) Deterring open and honest discussion, or any discussion at all, between complainants and management works against the purpose of the Civil Rights Act: to ensure a discrimination free workplace. The whole process is geared toward this purpose. If management is not made aware of problems, it cannot act to remedy them. Employees have a right to a discrimination free workplace. Reducing the effectiveness and limiting the use of one of management's methods of uncovering discrimination contravenes that right.

Additionally, a union's presence in the mediation of a discrimination complaint creates a chilling effect on complainants by deterring them, at least in certain situations, from being "forthcoming and candid, without fear that frank statements may later be used against them." (47) If the complaint involves a union officer, steward, or a strong supporter of the union, an employee would likely not want the union present. Although the union's duty to represent all members of the bargaining unit fairly would restrict the union representative from using the information against the claimant, the same problem of policing the dissemination of information within the union exists. The claimant may not believe the union representative will keep the information from its officers or its strong supporters, so they may not bring the charge or enter into mediation at all. This disincentive to enter into mediation effectively takes away a powerful remedial tool, violating the complainant's fights under the Civil Rights Act.

The complainant would also want to limit knowledge of the information if the complaint involves especially lurid or embarrassing details, as often the case in sexual harassment cases. Again, the complainant may be unwilling to trust almost anyone with the information. Adding parties to the procedure would increase fear the information will be spread at the work place. Permitting a union to represent its own interests in discrimination mediation creates incentives for both the complainant and the agency which are contrary to the intended open and candid environment. This works against the purpose of mediation, the informal resolution of discrimination complaints, to which frank and forthcoming discussions are vital. (48)

Union presence at ADR sessions creates a great disincentive to attempt ADR for both management and the complainant. Even if the parties attempt mediation in the face of this deterrent, union attendance limits open and honest discussion from both management and the complainant. This violates the complainant's right to have his or her complaint processed per the Civil Rights Act and works against the main purpose of the statute, to create a discrimination-free federal workplace. ADR is specifically provided for in the Civil Rights Act. Removing this tool, or making it less effective due to parties unwillingness to be fully open, takes away one of the complaint's most effective methods of resolving his or her issue and one of management's methods of ensuring it is providing a discrimination free workplace.

The Assoc. Dry Goods opinion identifies whom Congress intended to have access to information regarding discrimination complaints; the parties. Unions whose bargaining unit employees have filed complaints are not parties to the matter. While they may have an interest in the matter, their interests are outweighed by the complainant's right to have his or her allegation fully addressed and by the collective interest in management providing a discrimination-free workplace. In addition, the Court acknowledged Congress' intent to keep information regarding discrimination complaints, and mediation sessions to resolve them, private. Allowing unions to represent their own interests in the processing of discrimination complaints directly conflicts with this intent. The Court's holding illuminates why unions should not have the right to attend mediation sessions regarding discrimination complaints brought pursuant to EEOC rules: Congress intended they (and all non-parties) be excluded because the purposes of the Civil Rights Act will be best "achieved if the investigation and conciliation are carried on in privacy." (49)

B. EEOC Rules and Rulings Mandate Confidentiality

EEOC rules also mandate confidentiality of information pertaining to discrimination complaints. Charges of discrimination are not to be made public by agencies investigating complaints. While, the EEOC rules do not expressly state this, reading the rules for federal agencies as a whole leads to this conclusion. The EEOC rules state: "The investigation of complaints shall be conducted by the agency against which the complaint has been filed." (50) Additionally, the rules say, "Hearings are part of the investigative process and are thus closed to the public," (51) it is clear the agency's investigation as a whole is to be closed to the public.

The EEOC's Management Directive makes clear the Commission's intention that information disclosed pursuant to ADR methods be kept confidential is much clearer. The EEOC considers confidentiality to be essential as part of the ADR "core principle" of fairness. (52)
   Confidentiality is essential to the success of all ADR
   proceedings. Congress recognized this fact by
   enhancing the confidentiality provisions contained in [section]
   574 of ADRA, specifically exempting qualifying
   dispute resolution communications from disclosure
   under the Freedom of Information Act. 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....

   Confidentiality must be maintained by the parties, by
   any agency employees involved in the ADR proceeding
   and in the implementation of an ADR resolution, and by
   any neutral third party involved in the proceeding. (53)


While Management Directives and Policy Statements may not speak with the force of statutory law or administrative rules, the EEOC identifies two statutory mandates of confidentiality in its ADR Policy Statement. (54) "[T]he Commission will be guided by the nondisclosure provisions of the Civil Rights Act and the confidentiality provisions of ADRA which impose limitations on the disclosure of information." (55) Thus, the EEOC interprets both the Civil Rights Act and the ADRA as supporting their directives requiring confidentiality. Additionally, this directive requiring confidentiality should receive Chevron deference (56) because it is binding on the agencies subject to the Civil Rights Act per EEOC rules implemented pursuant to notice and comment requirements. (57)

Several EEOC rulings have also required confidentiality of settlement discussions. (58) In them the complainants attempted to use statements made in an ADR session as the basis for additional allegations, which the EEOC subsequently rejected. These rulings illuminate the EEOC's interpretation of its own rules and processes and of the statute which created the EEOC, (59) the Civil Rights Act. Thus, they should be binding per Chevron. (60)

In Sacramone v. USPS, for example, a complainant alleged his postmaster insulted and belittled him in a mediation session. (61) In its holding in the matter, the EEOC upheld the Administrative Law Judge's (ALJ) dismissal of the complaint for failure to state a claim, ruling: "[s]ettlement negotiations, including any statements or proposals, are to be treated as confidential and privileged to facilitate a candid interchange to settle disputes informally." (62)

In Harris v. Department of the Navy, (63) the complainant asked the EEOC to reconsider the denial of his complaint alleging reprisal. The allegation claimed an agency executive officer rejected settlement terms of a previous complaint as reprisal for previous EEO activity. When the Commission originally dismissed the case, it held matters in settlement negotiations were confidential and could not be made the basis for future complaints. The complainant requested reconsideration of the decision because, he said, the Commission failed to recognize his complaint was at the "formal (64)" stage when the settlement offer was rejected by the executive officer. The commission denied the request for reconsideration of the claim for the following reasons.

A settlement agreement may be reached at any stage of
   the complaint process and the regulations do not
   differentiate between informal complaints and formal
   complaints. See generally 29 C.F.R. [section] 1614.603. As
   stated in the previous decision, settlement negotiations,
   including any statements and proposals, are to be
   treated as confidential and privileged to facilitate a
   candid interchange to settle disputes informally. (65)


Thus, the EEOC has made a determination that its mandates of confidentiality apply to both formal complaints and to those in the pre-complaint stage.

These cases illustrate the EEOC's interpretation that mediation sessions brought pursuant to its direction are confidential and privileged, regardless of whether they were conducted in the pre-complaint or formal complaint stage. The EEOC's decisions requiring confidentiality in the process it set up should be binding per Chevron. (66)

C. The ADRA Mandates Confidentiality of Mediation Sessions

The EEOC's ADR Policy Statement on ADR specifically states the confidentiality provisions of the Administrative Dispute Resolution Act (ADRA) (67) apply to ADR of EEO complaints, (68) including mediation sessions. The ADRA generally prohibits neutrals (69) from voluntarily disclosing, or being required to disclose, any "dispute resolution communication" (70) or any communication made in confidence to the neutral unless all of the parties to the mediation and the neutral consent. This includes, of course, the requirement that a neutral not disclose to one party information received in confidence during a private caucus with the other party. There are several exceptions to the prohibition, such as a disclosure required pursuant to a court order. (71) Likewise, the parties in mediation are prohibited from disclosing any "dispute resolution communication," except for certain exceptions, including that the communication was created by the party wising to disclose the information. (72) The ADRA does not have any mandates requiring confidentiality from non-parties, indicating it is likely Congress did not consider the potential inclusion of non-parties in the process, other than witnesses.

Communications protected under the ADRA are exempt from disclosure under the Freedom of Information Act (FOIA). (73) [section] 574(j) of the ADRA reads: "A dispute resolution communication which is between a neutral and a party and which may not be disclosed under this section shall also be exempt from disclosure under section 552(b)(3)." (74) Congress intended, under almost all circumstances, information communicated in ADR sessions covered by the ADRA be kept confidential. The EEOC policy statement on ADR makes the ADRA guidelines mandatory for federal agencies when using ADR in the EEO context. (75) Mandating union presence in mediation of represented federal employees' EEO complaints is contrary to Congress' clear purpose of maintaining privacy in ADR.

D. Disclosure of Information Regarding Discrimination Complaints Is Forbidden by The Privacy Act.

Perhaps the most powerful argument against giving unions the right to represent themselves in mediations of its unit members' discrimination complaints comes from the Privacy Act, (76) which restricts federal agencies from releasing personal information they have gathered pursuant to their mission. The application of the Privacy Act is not dependent upon a court ruling regarding whether to interpret a case using the Civil Rights Act, the ADRA, or the FSLMRS. Unless there is an exception in another law, like the Freedom of Information Act (FOIA), the Privacy Act applies in all cases of release of information by the federal government. Thus, there is no question the Privacy Act applies to the release of information in EEO files as long as the information in question is considered a "record" and is located within a "system of records." (77)

5 U.S.C. [section] 552a(b) reads: "Conditions of disclosure. No agency shall disclose any record which is contained in a system of records by any means of communication to any person, or to another agency, except pursuant to a written request by, or with the prior written consent of, the individual to whom the record pertains." (78) (Emphasis added) There is no exception for non-personal or non-confidential information. Federal government agencies are prohibited from releasing any information in a record located within their systems of records by any means of communication without consent. Thus, if a discrimination complaint is considered a record and is located within a system of records, a government agency cannot disclose any information regarding the complaint to a union, not even orally, unless the person making the complaint consents in writing. It would even be a violation to notify another of the existence of that record, unless the person to whom the record pertained gave his or her permission.

There are several exceptions to the rule prohibiting disclosure, none of which apply to the issue discussed in this article. In particular, the exception listed at 5 U.S.C. [section] 552a (b)(2), "unless disclosure of the record would be--required under section 552 of this title" (FOIA), is not applicable pursuant to the provisions of the ADRA, (79) as discussed previously.

The EEOC has determined that information agencies gather regarding discrimination complaints is covered by the Privacy Act, thus is not to be disclosed to others, particularly to unions, without the consent of the complainant. The applicable EEOC Management Directive reads:
   Agencies must be mindful of obligations they may have
   under collective bargaining agreements to discuss
   development of ADR programs with representatives of
   appropriate bargaining units. Agencies must also be
   mindful of the prohibitions on the disclosure of
   information about individuals imposed by the Privacy
   Act. All pre- and post-complaint information is
   contained in a system of records subject to the Act.
   Such information, including the fact that a particular
   person has sought counseling or filed a complaint,
   cannot be disclosed to a union unless the complaining
   party elects union representation or gives his/her written
   consent. (80)


Although government agency policy directives do not have the force of law, like a statute or a rule implemented through the formal rulemaking process, this directive not to disclose information regarding discrimination complaints should receive Chevron deference because it is binding on government agencies per EEOC rules implemented pursuant to notice and comment requirements. (81) The argument that information agencies gather regarding discrimination complaints is covered by the Privacy Act becomes even more convincing, and the EEOC's interpretation should receive even greater weight, after looking at the text of the Privacy Act.

The analysis to determine whether a discrimination complaint is a record contained in a system of records begins by looking at the definitions in the Privacy Act. The relevant terms are defined in the following ways:
   "record" means any item, collection, or grouping of
   information about an individual that is maintained by an
   agency ... and that contains his name, or the identifying
   number, symbol, or other identifying particular assigned
   to the individual. (82)

   "system of records" means a group of any records under
   the control of any agency from which information is
   retrieved by the name of the individual or by some
   identifying number, symbol, or other identifying
   particular assigned to the individual. (83)


Next, the complaint process must be analyzed to determine if the information associated with it fits within the terms defined in the Privacy Act and thus is protected. The Air Force EEO process provides an example of a typical federal government method for processing discrimination complaints. In the Air Force process, as discussed in Section II of this article, a civilian employee who desires to file a complaint of discrimination must first meet with an EEO counselor to begin the "precomplaint phase" of the process. (84) The counselor records the information related in the meeting in an electronic intake form in order to conduct a limited inquiry, attempt to resolve the issue, and create reports. (85) The complainant's name, address, unit information, and specific reasons why the employee believes he or she is the victim of discrimination are recorded on the intake form. The intake form is kept in an electronic system of records. The EEO counselor has 30 days to complete the inquiry and attempt resolution, at the completion of which he or she will hold the "final interview" (86) with the complainant, ending the precomplaint stage.

If the complainant is not satisfied with the results of the precomplaint process and wishes to file a formal complaint, he or she submits the information relating to the complaint on Department of Defense Form 2655 (DD 2655), Complaint of Discrimination in the Federal Government. Similar to the electronic intake form, the form used for formal complaints contains fields for a complainant's name, address, work information, and specifics for why the employee feels he or she was the victim of discrimination.

The plain reading of the text of the Privacy Act indicates the information recorded by an Air Force EEO counselor in the precomplaint stage and contained on DD 2655 both constitute records for the purpose of the Act. They are both groupings of information collected about the complainant which contain his or her name. They are also both contained in a system of records as defined in the Act because they are under control of the agency and can be retrieved by either the name of the complainant. In addition, the EEOC has recognized the Air Force's system of discrimination records is covered by the Privacy Act. Besides being specifically addressed in an EEOC management directive, (87) the EEOC has published notice of the entire Department of Defense's systems of discrimination complaint records in the Federal Register as part of the general notice provided by the EEOC. (88) Disclosure to labor unions for collective bargaining or representational purposes is not listed under the routine uses, so neither is authorized under the Privacy Act without the complainant's consent.

The Supreme Court has considered how the Privacy Act affects the information an agency may provide a union. In Department of Defense v. Federal Labor Relations Authority, (89) the Court clarified how the Privacy Act applies to union demands for information pursuant to the FSLMRS. The Court ruled the Privacy Act's prohibition from releasing personal information applied to a union's request for federal employees addresses, regardless of the fact release of the information would further the purpose of the Labor statute. "The terms of the Labor Statute in no way suggest that the Privacy Act should be read in light of the purposes of the Labor Statute." (90) Thus, the Department of Defense properly denied the union request for employee addresses.

In DOD v. FLRA, two unions filed unfair labor practice charges with the FLRA after the DOD refused to give them the addresses of employees in the bargaining units. The FLRA, rejecting the DOD's argument that disclosure of the addresses was prohibited by the Privacy Act, held the DOD was required to provide the information pursuant to 5 U.S.C. [section] 71 14(b)(4), (91) and ordered the DOD to provide the addresses to the union. The DOD appealed to the Fifth Circuit which upheld the FLRA ruling and then appealed to the U.S. Supreme Court. (92)

The Court analyzed the FSLMRS mandate which "provides that agencies must, 'to the extent not prohibited by law,' furnish unions with data that are necessary for collective-bargaining purposes." (93) The Court went on to recognize the requested employee addresses were records covered the Privacy Act. "Therefore, unless FOIA would require release of the addresses, their disclosure is 'prohibited by law' and the agencies may not reveal them to the unions." (94)

The Court then considered the application of FOIA to the release of information in agency files. It said:
   First, in evaluating whether a request for information
   lies within the scope of a FOIA exemption, such as
   Exemption 6, that bars disclosure when it would
   amount to an invasion of privacy that is to some
   degree "unwarranted," "a court must balance the
   public interest in disclosure against the interest
   Congress intended the [e]xemption to protect." (95)

   Second, the only relevant "public interest in disclosure"
   to be weighed in this balance is the extent to which
   disclosure would serve the "core purpose of the FOIA,"
   which is "contribut[ing] significantly to public
   understanding of the operations or activities of the
   government." (96)


Thus, the purposes of the FSLMRS are not to be considered in a Privacy Act/FOIA analysis. The only relevant consideration in DOD v. FLRA was in balancing the privacy of the individuals concerned with the purposes of the FOIA, which is to "'shed light on an agency's performance of its statutory duty,' or otherwise let citizens know 'what their government is up to.'" (97)

The unions argued that the Court should distinguish their situation from the facts in the Court's previous Reporters Committee decision because the request for the addresses was made pursuant to the FSLMRS, not FOIA. They maintained that, to give full effect to all three statutes involved and to permit unions to carry out their statutory duties of representation, the Court should include the policy considerations of the FSLMRS in its balancing analysis under FOIA. The Court disagreed, reasoning:
   Disclosure of the home addresses is prohibited by the
   Privacy Act unless an exception to that Act applies.
   The terms of the Labor Statute in no way suggest that
   the Privacy Act should be read in light of the purposes
   of the Labor Statute. If there is an exception, therefore,
   it must be found within the Privacy Act itself ... the
   fact that respondents are seeking to vindicate the
   policies behind the Labor Statute is irrelevant to the
   FOIA analysis. (98)


The Court identified that Congress never created an exception to the Privacy Act for information "'necessary' for collective bargaining purposes." (99) Nor did it create a "special status under FOIA" for collective bargaining purposes. (100) The Court continued:
   Speculation about the ultimate goals of the Labor
   Statute is inappropriate here; the statute plainly states
   that an agency need furnish an exclusive representative
   with information that is necessary for collective-bargaining
   purposes only "to the extent not prohibited
   by law." 5 U.S.C. [section] 7114(b)(4). Disclosure of the
   addresses in this case is prohibited "by law," the
   Privacy Act. By disallowing disclosure, we do no more
   than give effect to the clear words of the provisions we
   construe, including the Labor Statute. (101)


The Court's decision clearly indicates there are no exceptions to the Privacy Act except those contained in the Act itself and in FOIA. It specifically demonstrates that labor unions have no special status under the Act, even if they are pursuing policies in accordance with the FSLMRS.

This case is instructive as it identifies that the Court has considered the Privacy Act and its application to union requests for information. Under the holding in DOD v. FLRA, government agencies are prohibited from providing information regarding discrimination complaints to unions. Additionally, they have an even stronger argument for withholding information regarding mediation of discrimination complaints from unions because the ADRA provides a specific exemption from FOIA for ADR communications. (102) Since information contained within the EEO records would certainly be disclosed in the mediation of a discrimination complaint, it is a violation of the Privacy Act for government agencies to allow union representatives to be present in EEO mediation sessions unless the complainant specifically requests their presence.

It is also a violation to simply notify a union of a discrimination complaint filed under an EEO process without first obtaining the complainant's permission. In a Fifth Circuit case from 2005, Jacobs v. National Drug Intelligence Center, (103) the court found: "A myriad of cases has held or assumed that the Act protects against oral disclosures." Thus, as long as the information came from a record located within a system of records, it is protected by the Privacy Act. It doesn't matter how it is relayed. Telling a union about a discrimination case is a violation unless the complainant has specifically authorized such disclosure.

A lower court specifically acknowledged the EEOC's requirement of confidentiality and addressed how the Privacy Act applies to information gathered to process complaints. Stewart, et al., v. Rubin, (104) decided by the D.C. District Court, concerned a class action in which a group of agents in the Bureau of Alcohol, Tobacco, and Firearms (ATF) complained that a settlement agreement between the ATF and a group of African American agents resulted in reverse discrimination. The plaintiffs wanted access to information brought forward during negotiations. Denying plaintiffs access to details of settlement negotiations, the court said:
   These objectors first believe that the claims proceedings
   pursuant to the Settlement Agreement should be public.
   The non-public nature of the claims processing and
   proceedings, however, is consistent with the current
   regulatory scheme for the processing of EEO
   complaints, which provides for non-public hearings and
   treats the entire complaint file as subject to the Privacy
   Act. See 29 C.F.R. Part 1614. (105)


Thus, the district court recognized that confidentiality regarding discrimination complaints was consistent with the Civil Rights Act and EEOC rules and that the information regarding complaints was protected from disclosure by the Privacy Act.

The text of the Privacy Act and the Supreme Court's holdings in DOD v. EZRA (106) and Reporters Committee (107) clearly demonstrate how government agencies are forbidden from disclosing information regarding individual discrimination complaints to outside parties, including unions, unless the complainant agrees to the disclosure. The mandates of the Privacy Act apply regardless of the legitimacy of competing interests. If an exception to the Privacy Act is not codified in a statute, it does not exist and the information cannot be released.

VI. THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS ACT DILEMMA

The Federal Service Labor-Management Relations Act (FSLMRS) is the statute governing labor relations for employees of the federal government. Two sections are particularly relevant for the issue analyzed in this article. Unions have both the authority and the obligation to represent the interests of all the employees in a bargaining unit pursuant to 5 U.S.C. [section] 7114(a)(1). (108) Under 5 U.S.C. [section] 7114(a)(2)(A) unions have the right to be present at all formal discussions between management and union members if the discussion concerns a "grievance." (109)

Thus, a union is required to represent all members of the bargaining unit and is entitled to representation at any formal discussions regarding grievances. Agencies have no authority to place conditions on that right.

As the representative of the entire bargaining unit, a union that has been recognized as the exclusive representative of a bargaining unit certainly has a stake in the outcome of some discrimination complaints. The terms of a discrimination complaint settlement may include the complainant's promotion, transfer, or additional training, all of which may come at the expense of another bargaining unit member receiving that opportunity. In Department of Veterans Affairs v. FLRA, the Tenth Circuit Court of Appeals noted: "the resolution of one individual complaint may bear on the rights of other bargaining unit employees." (110)

Nonetheless, even though the rest of a bargaining unit may have a stake in the outcome of the mediation of discrimination complaint, union representation still must be disallowed. The rights of individual employees to be free from discrimination must trump the rights of the bargaining unit as a whole. As discussed later in the section of this article involving the Dover AFB case, the NTEU decision from the D.C. Circuit Court of Appeals, citing the Supreme Court's decision in Franks v. Bowman Transportation Co., (111) stated: "Congress has explicitly decided 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. The Civil Rights Act of 1964, 42 U.S.C. [section] 2000e et seq., provides that the right of an aggrieved employee to complete relief takes priority over the general interests of the bargaining unit." (112) Requiring union representation in mediation of discrimination complaints creates a preference for bargaining unit rights over an individual's right to combat discrimination, which is the opposite of what Congress intended.

As discussed in the section analyzing the ADRA, having a union representative present when not specifically requested deters complainants from making complaints and from entering in the mediation process. It causes management to be less forthcoming as well, which works against the complainant's interest in fully understanding what took place and thwarts the purpose of the Civil Rights Act, to ensure a discrimination free workplace.

Adding a requirement that the union keep information they learn during a mediation session private would not help, since it is very difficult to determine when this confidentiality is breeched internally. Both claimants and management understand this, which could cause either or both parties to be less forthcoming. Additionally, if the FSLMRS gives unions the right to be represented at mediations of complaints brought by bargaining unit members, government agencies have no authority to put conditions on that right, including a requirement a union sign a confidentiality agreement prior to attending the mediation session. Thus, a union could refuse to sign any such document and would still be allowed to attend the mediation.

The union could argue they already have a prohibition on releasing information harmful to any employee inherent in their duty to represent the interests of all parties, including the complainant. (113) This promise of confidentiality will not reassure a complainant who is bringing an allegation against a union officer or steward. Requiring a complainant to specifically request the union not be allowed to attend is problematic, as any election to do so raises a red flag to the union that someone important to them may be involved.

Thus, even though a union does have a stake in the outcome of mediation of discrimination complaints, they must not be allowed to attend as the rights of individual employees to respond to discrimination and the Civil Right Act's purpose in ensuring a discrimination free workplace must take priority. In addition, the union's interest in the outcome of the process does not change the fact that informing them of the existence of a discrimination complaint without the consent of the complainant is a violation of the Privacy Act, and the Supreme Court said the Privacy Act is not to be interpreted "in light of the purposes of the Labor Statute." (114)

VII. CASE LAW REGARDING REQUIRING UNION REPRESENTATION AT MEDIATION OF REPRESENTED FEDERAL GOVERNMENT EMPLOYEE DISCRIMINATION COMPLAINTS

The issue of whether union representation is required by the FSLMRS during mediation of discrimination complaints has been considered twice by the Ninth Circuit and once by the D.C. Circuit. The Ninth Circuit determined union attendance is not required in these mediation sessions and the D.C. Circuit held unions must be allowed at these meetings. This split in the circuits has not been resolved by the Supreme Court. Of the two, the Ninth Circuit's decisions are the most consistent with the Civil Rights Act, EEOC direction, the ADRA, the Privacy Act, and Supreme Court holdings. Those decisions, however, also have their flaws. This article will analyze these three cases chronologically, addressing the most recent, and most significant, case last, the D.C. Circuit's FLRA v. Dover Air Force Base (115) decision.

A. Internal Revenue Service Center, Fresno, California v. Federal Labor Relations Authority

1. Summary of the IRS Fresno Decision

In 1983, the Ninth Circuit considered Internal Revenue Service Center, Fresno, California v. Federal Labor Relations Authority (IRS Fresno), (116) in which the question of whether a union had the right to be represented during a pre-complaint (117) mediation of an allegation of discrimination was at issue. The discrimination complaint central to the case was filed by an employee represented by the union. The court ruled the union was not entitled to notice of and presence at the meeting per 5 U.S.C. [section] 7114(a)(2)(A) because the mediation was conducted pursuant to an EEOC-mandated attempt at "informal" resolution of the allegation. Thus, the court ruled, the mediation was not a formal meeting. (118) Additionally, the court held the meeting did not concern a "grievance" under 5 U.S.C. [section] 7114(a)(2)(A) because "the EEOC procedure is unrelated to and separate from the contractual grievance process." (119) The court did not reach the issue of whether informing the union about the informal complaint would be a violation of the Privacy Act. (120)

In IRS Fresno, a female employee alleged she was the victim of gender discrimination when told she would have to accept a two-step grade reduction if she accepted a transfer into a training position. After receiving the offer she contacted the personnel office which informed her she was qualified for a much higher rating. The employee contacted the local union steward, who also served as the vice-president of her local union chapter. The union steward suggested she file a complaint with the equal employment opportunity (EEO) office and a contractual grievance, (121) since the contractual grievance process specifically excluded discrimination claims. The complainant filed an allegation with the EEO office which assigned the investigation to the head EEO officer of the agency. The complainant chose the union steward as her personal representative to assist her in the EEO process. (122)

The EEO officer conducted the pre-complaint investigation in accordance with the applicable EEOC rules at 29 C.F.R [section] 1613.213(a) (123) by interviewing the complainant and her supervisor and suggesting the parties try to resolve the allegation informally. The union steward, acting not on behalf of the union but in her role as the employee's representative in the meeting, was the only union official aware of or given notice of the meeting. The meeting ended without an acceptable resolution to the parties. (124)

Subsequently, the union filed an unfair labor practice charge against the IRS, pursuant to which the FLRA regional office issued a complaint "that the IRS had committed an unfair labor practice by holding a formal discussion concerning a grievance or condition of employment without providing the union an opportunity to be represented at the discussion, in violation of 5 U.S.C. [section] 71 14(a)(2)(A)." (125) At the hearing, the administrative law judge ruled the union did have a right to attend the meeting, but that the union steward's attendance, even in her role as employee representative, fulfilled the IRS's duty in this respect. Upon the union's appeal, the FLRA concurred with the ALJ that the union did have a right to notice and attendance at the meeting, (126) but disagreed that the union steward's attendance fulfilled the IRS's obligation and held "the union had an interest in being present at the EEO pre-complaint conciliation conference independent of representing" the employee. (127) The FLRA's ruling did not distinguish between joint discussions, where all parties are present, and private caucuses, where mediators meet individually with one party in private, thus its ruling requiring an invitation to the union would apply to both.

The IRS appealed the FLRA decision to the Ninth Circuit Court of Appeals. The IRS argued the FLRA's interpretation of 5 U.S.C. [section] 7114(a)(2)(A) of the FSLMRS conflicted with the EEOC's rules regarding investigation of discrimination complaints. 29 C.F.R. [section] 1613.213(a) (1982) (128) mandated confidentiality of an accuser's identity until after a formal complaint of discrimination was filed. In addition, the IRS argued the FLRA's interpretation of the FSLMRS conflicted with the Privacy Act. (129)

As the IRS Fresno court began its analysis, it pointed out the FLRA in its decision was not interpreting the FSLMRS, the statute it was created to administer, but the Civil Rights Act and EEOC regulations created pursuant to the Act. Thus, the court determined the FLRA's decisions in this area were not to be given "considerable weight" or a great deal of deference. (130) In other words, the IRS Fresno court ruled the FLRA's interpretation was not to be given what would become Chevron deference. (131)

The IRS Fresno court then contrasted 5 U.S.C. [section] 7114(a)(2)(A), which mandates the union have an opportunity to be represented "at any formal discussion between the agency and an employee which concerns any grievance, personnel policy, or general condition of employment." with 29 C.F.R. [section] 1613.213(a) which prohibited "an EEO counselor from revealing the identity of a person consulting him before the person files a formal complaint of discrimination." (132) The court held the representation requirements of 5 U.S.C. [section] 7114(a)(2)(A) were not applicable to the EEO pre-complaint conciliation conference because it was not a formal discussion. While the FLRA determined the meeting was a formal discussion because it was held in a conference room, was pre-scheduled, and was attended by the employee's supervisor, the IRS Fresno court determined the FLRA had overlooked the "most critical circumstance," that the meeting was part of an EEO procedure designed to resolve discrimination allegations on an "informal basis." (133)

The IRS Fresno court then analyzed the EEOC complaint procedure to explain its ruling the mediation was not a formal discussion.
   The EEO counselor is required not only to give advice and to
   investigate but "to seek a resolution of the matter on an informal
   basis." 29 C.F.R. [section] 1613.213(a). This opportunity for
   informal resolution is clearly a key element in the EEOC complaint
   procedure; the EEOC requires employees alleging discrimination to
   exhaust the precomplaint procedures of 29 C.F.R. [section][section]
   1613.213 before filing a formal complaint and activating formal
   steps in the EEOC process. (134)


The court went on to discuss the previously-cited statement regarding confidentiality Senator Dirksen made when offering an amendment to the Civil Rights Act of 1964: "The maximum results from the voluntary approach will be achieved if the investigation and conciliation are carried on in privacy. If voluntary compliance with this title is not achieved, the dispute will be fully exposed to the public view when a court suit is filed." (135) While this statement was made when passing the bill prohibiting discrimination in the private sector, the IRS Fresno court believed the provisions it discusses "illustrate Congress' concern with the confidentiality of EEOC investigations and its belief that such confidentiality is important in achieving voluntary compliance with the goals of the Civil Rights Act." (136)

The IRS Fresno court also held the union had no right to attend the mediation because the discrimination complaint was not a "grievance" under 5 U.S.C. [section] 7114(a)(2)(A). (137) The court found the FLRA had incorrectly applied the FSLMRS definition of grievance from 5 U.S.C. [section] 7103(a)(9) (138) to EEOC procedures which were "discrete and separate from the grievance process to which 5 U.S.C. [section][section] 7103 and 7114 are directed." (139) Basically, the court held the rules under the FSLMRS did not apply to the EEOC process.

The court explained this holding by discussing the purpose of the union's status as the exclusive representative of the employees in the bargaining process.
   As exclusive representative, the union has responsibility
   for administering the collective bargaining agreement
   and has an obvious interest in being present when a
   dispute governed by the grievance procedure it
   negotiated is discussed or resolved. However, the
   EEOC procedure is unrelated to and separate from the
   contractual process.... The union's interest in the
   statutory EEOC procedure is not the same as its interest
   in the contractual grievance process. It has duties and
   obligations under the negotiated grievance mechanism,
   for example, but it has no such institutional role in the
   EEOC process. There is no reason it should have the
   same rights in the EEOC procedure as it does in the
   contractual grievance process. (140)


This demonstrates the IRS Fresno court understood that, in a negotiated grievance procedure, the union asserts a collective right, whereas in a discrimination complaint an individual right is at stake, and the union has no role regarding that individual right unless chosen by the complainant as personal representative.

Because the court held the mediation was not a formal discussion per the FSLMRS and the complaint under the EEOC procedure did not constitute a grievance, the court did not rule on whether the FLRA's decision to mandate union representation at mediation of discrimination complaints violated the Privacy Act. (141)

The Ninth Circuit decision in IRS Fresno is consistent with the Civil Rights Act and EEOC direction at the time. (142) Nonetheless, the court could have done much to clarify the rules regarding union presence in mediation of discrimination complaints if it had: 1) discussed the general prohibition in the Civil Rights Act against making charges public; 2) pointed out the Civil Rights Act requires an effort at informal resolution of complaints both before and after a formal complaint is filed; and, 3) addressed the fact that releasing information in a discrimination complaint file is contrary to the Privacy Act. Had the court properly addressed these issues, subsequent court and FLRA decisions would have had to consider and thoroughly analyze these issues, rather than summarily dismiss them.

2. The Civil Rights Act and Confidentiality of Discrimination Complaints

The IRS Fresno court's first error was in focusing its holding on the EEOC rule which stated: "The ... [c]ounselor shall not reveal the identity of an aggrieved person ... until the agency has accepted a complaint of discrimination." (143) While an agency's rules regarding how its organic statute should be interpreted are powerful, the actual statutory text is the clearest expression of the law and Congress' intention. The ruling should have been based upon the text of the Civil Rights Act.

As discussed in the first section of this article, the Civil Rights Act clearly expresses Congress' intent to restrict the release of information regarding discrimination complaints. "Charges shall not be made public by the Commission" (144) In addition, the Act makes it a criminal offense "to make public in any manner whatever any information obtained by the Commission ... prior to the institution of any proceeding ... involving such information." (145) These sections of the Civil Rights Act do not expressly prohibit employees of government agencies who are conducting investigations of discrimination (146) from disclosing this information. However, these paragraphs (147) were written when the law was originally passed in 1964, nearly a decade before Congress made the Civil Rights Act applicable to government agencies. At the time they were written, only EEOC personnel would have had information regarding discrimination complaints, so it was natural to write the prohibition from disclosure to cover only them. The Civil Rights Act delegated the authority to investigate claims to the individual government agencies. (148) It is a reasonable assumption Congress also intended to delegate the responsibility for keeping those investigations, and the complaints that led to them, confidential.

Congress clearly intended to keep discrimination complaints confidential. Their intent did not change when the responsibility for conducting investigations was delegated. The prohibition from making discrimination complaints public applies not only to the EEOC, but also to the government agencies fulfilling the EEOC's duties under the Civil Rights Act.

The IRS Fresno decision was also flawed in that it did not mention the Dry Goods case, even though the case had been decided by the Supreme Court only two years prior. Dry Goods held Congress intended to allow information regarding discrimination complaints to be disclosed to the parties in the matter, but not to others. (149) Although the employer in the Dry Goods case was not a federal agency and precomplaint mediation was not at issue, the case elucidates the Court's understanding of Congress' desire to keep discrimination complaints from public disclosure. The Court's ruling also states discrimination charges are not to be disclosed in either the precomplaint phase or after a complaint has been filed.

In Dry Goods, the Court discusses how the Civil Rights Act forbids "disclosure of charges" at the same time it mandates service of the charges on the respondent. (150) Service of charges can only occur after a formal complaint has been filed because there is no actual charge until that time. If Congress had intended to prohibit disclosure of only pre-complaint charges of discrimination, there would be no discussion of how service of charges must be excluded from the prohibition, because there would be no prohibition once a formal charge was filed. While Congress may not have done the most artful drafting in its creation of the many bills that comprise the Civil Rights Act, in Dry Goods the Court recognized Congress' intent to prohibit public disclosure of discrimination complaints throughout the process, up to an EEOC hearing.

In its IRS Fresno ruling, the Ninth Circuit court erroneously focused on an EEOC rule which prohibited disclosure of the identity of an employee alleging discrimination during the precomplaint process. The purpose of this rule was likely to shield the complainant's identity from the alleged perpetrator of the discrimination while the EEO counselor attempted to resolve the issue. In focusing on this rule and not looking at the entire statute or at a then-recent Supreme Court case, the IRS Fresno court failed to use the most powerful argument for allowing the IRS to keep the union out of the mediation session: the statute prohibits public disclosure of discrimination complaints in general.

3. The IRS Fresno Decision and Informal Resolution of Complaints

The IRS Fresno decision also failed to clearly distinguish the contextual difference between a "formal complaint of discrimination," (151) which indicates the EEOC-mandated precomplaint process has been completed and an actual complaint has been filed, and resolving a discrimination complaint on an "informal basis," (152) meaning without having an administrative judge adjudicate the case in an EEOC administrative hearing. The Civil Rights Act directs the EEOC and government agencies to attempt to resolve discrimination complaints informally; the statute does not distinguish between precomplaint and formal complaint stages. The failure to differentiate between an "informal" complaint and an "informal process" of dispute resolution causes confusion in the FLRA v. Dover Air Force Base case, (153) discussed below, in which the D.C. Circuit considered whether a union had the right to attend a mediation regarding a discrimination complaint held after a formal complaint was filed.

Congress intended for "informal methods of conference, conciliation, and persuasion" to be used to resolve discrimination complaints after "investigation," (154) which takes place after a formal complaint has been filed. Thus, the mandate directing government agencies to engage in informal methods of resolution clearly continues to be in force after a charge has been filed. The IRS Fresno court seemed to recognize this as it analyzed the facts and discussed how the attempt at settling the dispute using mediation is resolving it on an "informal basis."
   The meeting was convened by Thompson under the
   EEOC procedure (155) by which an EEO counselor seeks
   to resolve discrimination charges in the precomplaint
   stage on an 'informal basis.' Given that basis and the
   purpose of the meeting, the discussion was informal
   rather than formal. (156)


Here, the court properly focuses on the "informal basis" of the meeting and not the status of the complaint at the time of the meeting. Later in the opinion, however, the court seems to get confused about the difference between a formal complaint and informal resolution of the dispute.
   This opportunity for informal resolution is clearly a key
   element in the EEOC complaint procedure; the EEOC
   requires employees alleging discrimination to exhaust
   the precomplaint procedures of 29 C.F.R. [section] 1613.213
   before filing a formal complaint and activating formal
   steps in the EEOC process. (157)


While the Civil Rights Act requires an attempt at informal resolution of a discrimination complaint after a formal charge has been filed, the court in IRS Fresno seems to be saying that after a formal complaint is filed, the "formal steps in the EEOC process" are activated, implying that all steps from there on are "formal." In actuality, the Civil Rights Act mandates an "opportunity for informal resolution" throughout the process, even after the formal complaint is filed.

The Ninth Circuit overlooked the text of the Civil Rights Act and based its decision on an EEOC regulation which was applicable to only the precomplaint stage of the process. The language of the Civil Rights Act clearly demonstrates Congress' desire for informal resolution of complaints throughout the process. Had the IRS Fresno court's decision focused on the text of the statute, it could have established that informal settlement processes are to be attempted throughout the complaint cycle and created a more useful precedent.

4. The Privacy Act Issue

Finally, because its ruling was based on other grounds, the Ninth Circuit declined to rule on the application of the Privacy Act to the FLRA's order. As discussed in the first section of this article, the Privacy Act clearly prohibits release of records regarding discrimination complaints. If the Privacy Act is properly applied, it would be dispositive of all other issues, so it was a mistake for the IRS Fresno court to decide not to consider the issue. The Privacy Act issue was addressed later by the D.C. Circuit in Dover AFB v. FLRA, (158) though with an incorrect result, which will be discussed later in this article.

B. Luke Air Force Base v. Federal Labor Relations Authority

1. Summary of the Luke AFB Decision

In 1999 the Ninth Circuit heard another case in which a labor union's right to be represented at a mediation session held pursuant to EEOC rules was at issue. This time, however, a formal complaint of discrimination had been filed by the aggrieved employee prior to the mediation. In Luke Air Force Base vs. Federal Labor Relations Authority and American Federation of Government Employees, AFL-CIO, Local 1547 (Luke AFB), (159) in an unpublished opinion, the Ninth Circuit Court of Appeals again held the union had no right to representation at mediation sessions conducted to resolve EEO complaints.

In Luke AFB, like IRS Fresno, the union contract excluded discrimination complaints from its grievance procedure. (160) Thus, the complainant, a bargaining unit employee who alleged retaliation for a prior discrimination complaint which was subsequently found to have no merit, (161) filed a formal complaint of discrimination pursuant to EEOC regulations. The claimant had already fulfilled the requirement for precomplaint processing in the original complaint. She chose the president of her union as her personal representative for the complaint process and mediation. (162)

At the time, discrimination complaints against Department of Defense (DOD) agencies were investigated by a DOD organization called the Office of Complaint Investigation (OCI). (163) As part of the OCI investigation, the investigator met with the complainant, her representative and the complainant's supervisor in an attempt to resolve the dispute. The complainant's representative, the union president, left the meeting early. There was no resolution at the end of the initial session so a follow-up meeting was scheduled for the next day. No one informed the union president or any union official of the scheduled second session. At the second meeting, in which the union president was not present, the complainant signed a settlement agreement. (164)

Subsequently, the union filed unfair labor practice charges against Luke AFB with the FLRA. The ALJ assigned to the case found Luke AFB had violated [section] 7114 of the FSLMRS because it did not give the union notice of and opportunity to be present at the second meeting with the complainant. The FLRA adopted the ALJ's decision. (165)

In its decision the FLRA specifically included private caucuses between the mediator and the employee as sessions in which the union is entitled to be present. The Air Force contended that the session in dispute was not between management and an employee because the attorney representing management was not present. "The record shows that at that mediation/investigation session, the chief EEO counselor was 'in and out of the room' relaying the employee's position regarding a proposed settlement agreement to the Judge Advocate General attorney and returning to present the Respondent's position to the employee." (166) The FLRA ruled: "Even if they were communicating exclusively through the chief EEO counselor, it is clear that both the employee and the Judge Advocate General attorney were engaged in responding to each other's settlement positions, and that they were no less engaged than if they had been speaking face-to-face--as they had been speaking the previous day. A normal mediation technique is to have people in different rooms with someone going back and forth conducting the negotiation. The Union's interest and right to be represented at face-to-face negotiations of a grievance applies as well, in our view, to a negotiation conducted through a mediator." (references omitted). (167)

The Air Force appealed the decision to the Ninth Circuit Court of Appeals. The court's analysis was very brief and mostly relied on its earlier decision in IRS Fresno. The court began its reasoning by stating: "We may set aside a decision issued by the FLRA only if it is 'arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." (168) Basically, the court determined the FLRA's decision should receive Chevron deference. (169) The court then held the FLRA acted arbitrarily and capriciously in deciding Luke AFB committed an unfair labor practice.

The court went on to analyze the union's right to representation. "In order for the union to possess a right to representation at a meeting, the following must exist: There must be (1) a discussion, (2) which is formal, (3) between the representatives of the government employer and the unit employee or her representatives (4) concerning a grievance." (170) Looking to its earlier IRS Fresno decision, the court held the meeting conducted pursuant to EEOC procedures did not concern a grievance for which [section] 7114 of the FSLMRS was created. In addition: "The fact that the collective bargaining agreement explicitly excludes discrimination claims from the grievance procedure also suggests that these claims are not grievances." (171) Since the court held the meeting did not concern a grievance, the fourth element of [section] 7114 was not met and the union had no right to attend the meeting. The issue regarding union attendance at private caucuses was not addressed.

The Luke AFB decision was consistent with IRS Fresno, so the proper result was reached, but the Ninth Circuit made two important errors. The court mistakenly analyzed the dispute by using labor law (the FSLMRS) rather than by using the Civil Rights Act and EEOC interpretations thereof and the court ignored the question of whether the mediation session was a formal discussion. Regardless, since this case was unpublished, it has little precedential value.

2. Deference Granted to FLRA in Interpreting an EEOC Process

In IRS Fresno, the Ninth Circuit identified the fact that the FLRA was not interpreting its own organic statute, the FSLMRS, but the Civil Rights Act. Thus, the FLRA's decision at issue in the IRS Fresno case received little deference. (172) In Luke AFB, however, the same court seems to forget this and indicates it will give the FLRA great discretion in its decision, "We may set aside a decision issued by the FLRA only if it is 'arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." (173) This is incorrect and inconsistent with IRS Fresno. The FLRA's decision should not have been granted great deference as it was not an interpretation of the FSLMRS, but of the procedures set up by the EEOC pursuant to the Civil Rights Act. The Luke AFB court then ruled the FLRA's decision was arbitrary and capricious. This effectively negated the issue, but it set a bad precedent of deferring to the FLRA's authority in interpreting the Civil Rights Act.

3. Decision Did Not Consider Whether Mediation Was a Formal Discussion

The Luke AFB decision has another failing as well. The Luke AFB court ignored the "formality" issue by moving directly to whether or not the meeting concerned a "grievance." It should have identified that the Civil Rights Act describes "methods of conference, conciliation, and persuasion" as informal. (174) Had the Luke AFB court properly identified the informality of the mediation process, it could have cited the ruling in IRS Fresno that the "most critical circumstance" was that the meeting was part of an EEO procedure designed to resolve discrimination allegations informally. (175) This would have been the proper analysis of the EEOC procedure, using the EEOC rules and the Civil Rights Act, rather than by trying to fit the EEOC process into the labor law context.

The court should have ruled the Civil Rights Act defines these mediation sessions as informal, thus the union has no right to attend, in addition to following its prior ruling in IRS Fresno that discrimination complaints are not grievances within the meaning of the FSLMRS. Remaining silent on this issue creates the impression, though incorrect, that the court believed this element of the [section] 7114 test (176) was met, and that the court understood the meeting to be formal.

4. Failure to Rule on ADRA or Privacy Act Issue

Similar to the IRS Fresno decision, the Luke AFB court declined to rule on the application of either the ADRA or the Privacy Act to the FLRA's order. Again this was a mistake by the Ninth Circuit since the Privacy Act issues would have been dispositive of the case. These issues were addressed later by the D.C. Circuit in Dover AFB v. FLRA, (177) and are analyzed below.

C. Dover Air Force Base v. Federal Labor Relations Authority

1. Summary of the Dover AFB Decision

In 2003, the Court of Appeals for the District of Columbia Circuit ruled on a case with the same issue as 9th Circuit's IRS Fresno and Luke AFB cases: does a union have a right to be represented at a mediation conducted pursuant to EEOC regulations regarding an allegation of discrimination brought by an employee represented by the union. In Dover Air Force Base v. Federal Labor Relations Authority and American Federation of Government Employees, Local 1709 (Dover AFB), (178) the D.C. Circuit court held that the FSLMRS definition of "grievance" does include discrimination complaints filed pursuant to EEOC rules, thus the union does have the right to be represented at these mediation sessions. The court rejected the Air Force's additional arguments that requiring union representation in EEO mediations would violate the ADRA and the Privacy Act. (179)

The complainant in Dover AFB filed a formal EEO complaint of discrimination pursuant to part 1614 of the EEOC regulations following a suspension he had received. Similar to IRS Fresno and Luke AFB, the applicable collective bargaining agreement excluded discrimination claims from the negotiated grievance procedure. The complainant requested mediation of the issue, which was subsequently conducted by a contract mediator. The only individuals participating in the mediation were the mediator, the complainant and an Air Force attorney representing management. The parties failed to resolve the allegation during the six-hour mediation. The complainant's union was neither notified of nor given the opportunity to attend the session. (180)

Consequently, the complainant's union filed an unfair labor practice complaint against the Air Force with the FLRA, and a hearing was conducted by an ALJ. The ALJ found the discrimination complaint addressed in the mediation was a grievance covered by [section] 7114(a)(2)(A) of the FSLMRS, thus the Air Force had committed an unfair labor practice by failing to notify and offer the union the opportunity to attend the mediation. (181)

The Air Force appealed the ALJ decision to the FLRA, citing the Ninth Circuit's opinion in Fresno that complaints made pursuant to EEOC procedures do not constitute "grievances" as defined by the FSLMRS. (182) However, the FLRA upheld the ALJ's decision, relying on the D.C. Circuit's opinion in National Treasury Employee's Union v. Federal Labor Relations Authority (NTEU). (183) The court in NTEU held: "section 7121 provides that a grievance includes both those complaints filed pursuant to a negotiated grievance procedure and those filed pursuant to alternative statutory procedures," (184) such as those filed under EEOC regulations. The FLRA rejected all of the Air Force's arguments, which will be discussed as they were addressed by the appellate court. (185) Regarding union attendance at private caucuses between a mediator and a member of a bargaining unit, the FLRA reaffirmed its precedent set in its Luke case which required union invitation to those sessions. (186)

The Air Force appealed the FLRA's decision to the D.C. Circuit Court of Appeals, which began its analysis by stating its disagreement with the Air Force's argument that an EEO compliant is not a grievance, noting its prior opinion in NTEU. The Dover AFB court ruled it would not distinguish NTEU from the present case as requested by the Air Force, even though NTEU concerned a Merit Systems Protection Board (MSPB) proceeding rather than an EEO procedure. In so ruling, the court said, "our analysis in NTEU relied upon the text, structure, and legislative history of the Act (187) and did not rest on the type of grievance in question.... [A]ccordingly, we will read the term 'grievance' as we did in that case." (188)

Next, the Dover AFB court applied the Chevron (189) test to the FLRA's construction of the FSLMRS right of union representation, granting the FLRA "considerable deference" because the court believed the FLRA was exercising "its special function of applying the general provisions of the [Act] to the complexities of federal labor relations." (190) It determined the statutory language of 5 U.S.C. [section] 7114(a)(2)(A) (191) "was not unambiguous," (192) so it moved to Chevron step 2. The court held the FLRA's interpretation of 5 U.S.C. [section] 7114(a)(2)(A), that the union had a right to be represented at the mediation of a formal EEO complaint filed by one of its members, was a "natural reading of the broad statutory language" (193) and thus, appropriate. Although the Dover AFB court identified that 80% of the time the parties were in individual caucuses with the mediator, outside the presence of the opposing party, its ruling it did not distinguish between joint sessions and individual caucuses. (194) Thus, its requirement that a union be invited to attend mediation sessions of bargaining unit members applies for both joint sessions between the parties and private caucuses between the mediator and the employee.

The court then returned to the application of its earlier decision in NTEU, identifying the FLRA's consistency with that case. The Dover AFB court stated the problem with the Air Force's argument that the Ninth Circuit's opinion in IRS Fresno applied was that the D.C. Circuit court in NTEU specifically disagreed with the Ninth's Circuit's reasoning in IRS Fresno. Citing NTEU, the Dover AFB court concluded that "IRS Fresno appears 'to be based primarily on its conclusion that the precomplaint conference did not constitute a 'formal' discussion' rather than on its brief analysis of the grievance issue." (195)

The decision next considered the Air Force's attempt to distinguish the EEO complaint at issue in Dover AFB from the MSPB complaint which was at issue in NTEU. In doing so, the Air Force pointed out that the Ninth Circuit had treated these types of complaints differently in IRS Fresno and Department of Veteran's Affairs Medical Center v. Federal Labor Relations Authority (VA Med Ctr). (196) Contrary to the Air Force's argument, however, the Dover AFB court pointed out "the Ninth Circuit itself has noted that our reasoning in NTEU, rejecting the IRS Fresno analysis, is more persuasive than that court's own reasoning in IRS Fresno." (197)

The Air Force also argued the complainant's individual rights should trump the union's collective rights. In doing so it relied on language from NTEU: "in the case of grievances arising out of discrimination ... Congress has explicitly decided 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." (198) The court countered this argument by clarifying the point it made in footnote 12 of NTEU: "a direct conflict between the rights of an exclusive representative under [section] 7114(a)(2)(A) and the rights of an employee victim of discrimination should ... presumably be resolved in favor of the latter." (199) The court said there was no direct conflict in this case. (200)

The Air Force contended mandating union representation in mediation of EEO complaints violated the confidentiality provisions of ADRA. The court said this argument failed because the terms of the ADRA did not prohibit union attendance at ADR proceedings, but "concern only the confidentiality of communications made at an ADR proceeding and do not address what persons or parties may attend an ADR proceeding." (201) In a footnote, the court also questions whether the ADRA applies in Dover AFB since the ADRA "by its terms is voluntary and merely supplements, rather than limits, other available ADR techniques." (202)

The Air Force asserted the FLRA's decision would violate the Privacy Act. The Dover AFB court's answer was similar to its response to the ADRA argument: the Privacy Act does not prohibit union attendance at ADR proceedings, it protects the confidentiality of records. Additionally, the court ruled, "this case does not present a situation where the presence of a union representative in an ADR proceeding would result in the revelation of confidential information in violation of the Privacy Act." (203)

Finally, the Air Force maintained requiring union representation in mediation of EEO complaints would violate ADR "Core Principles" as addressed in Section VII, Chapter 3, of EEOC Management Directive 110. The Dover AFB court dismisses this argument by concluding it "amounts to no more than the Air Force's doubt that union representatives can keep confidential matters confidential. Union representatives are often in the position of having to maintain confidentiality." (204) The court continued: "even assuming that an inconsistency between an agency manual and a statute constitutes a conflict, the Air Force again fails to show a conflict with the FLRA's construction of section 7114(a)(2)(A)." (205)

At the end of its opinion, the D.C. Court of Appeals did acknowledge that their decision might be different if a complainant did not want the union to attend the 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 as described in footnote 12 of NTEU." (206) Since there was no evidence the complainant objected to union presence in the mediation in Dover AFB, the court found there was no "direct" conflict as described in NTEU.

The D.C. Circuit's opinion in Dover AFB is flawed for many reasons, causing it to reach an incorrect decision. The court erroneously: 1) granted Chevron deference to the FLRA's interpretation of an EEOC process; 2) analyzed whether an EEO complaint is a grievance for the purposes of the FSLMRS without consulting the applicable statute for the complaint, the Civil Rights Act; 3) disregarded the issue of whether a mediation session of an EEO complaint is a formal discussion trigging a union's right of representation; 4) relied on NTEU, an unsound prior decision, to determine whether a discrimination complaint was a grievance for the purpose of the FSLMRS rather than looking at the issue anew; 5) summarily dismissed the argument that mandating union representation at a mediation violated the Administrative Dispute Resolution Act (ADRA) with minimal analysis of the issue; and, 6) summarily dismissed the argument that providing the union notice of and opportunity to attend mediation sessions regarding discrimination complaints violates the Privacy Act.

2. Incorrect Grant of Chevron Deference

The court's first error was deciding to grant Chevron deference to the FLRA's prior decision. As recognized by the Ninth Circuit in IRS Fresno, the FLRA was not interpreting its own "enabling or organic statute," (207) but was interpreting the Civil Rights Act and EEOC rules and procedures set up pursuant to that statute.

Early in the Dover AFB opinion, the court explicitly identified the EEOC's responsibility for conducting the mandates spelled out in that statute: "The authority for enforcing the Civil Rights Act resides with the Equal Employment Opportunity Commission." (208) However, when the court determined whether a mediation conducted pursuant to EEOC regulations was a "grievance," they did so using the FLRA's interpretation of the FSLMRS, rather than the EEOC's interpretation of the Civil Rights Act and the EEOC regulations created in furtherance thereof.

The court basically allowed the FLRA to determine the meaning of the Civil Rights Act, rather than look to EEOC guidance on the meaning of its organic statute and the process created therein. This error poisoned this decision, and the prior decisions of both the ALJ and the FLRA.

3. A Grievance in the Context of the Civil Rights Act?

The proper process for analyzing whether a "complaint" alleging a violation of the Civil Rights Act constitutes a "grievance" under the FSLMRS is by first looking at the terms of the Civil Rights Act itself. We look to the Civil Rights Act rather than to FLRA case law because the context from which the issue arises is that of a discrimination complaint. Additionally, as the D.C. Circuit itself noted in its NTEU decision citing the Supreme Court's decision in Franks v. Bowman Transportation Co., (209) "Congress has explicitly decided 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. The Civil Rights Act of 1964, 42 U.S.C. [section] 2000e et seq., provides that the right of an aggrieved employee to complete relief takes priority over the general interests of the bargaining unit." The Dover AFB court attempts to water down this note in NTEU by explaining it meant "direct" conflict. However, the idea of a "direct" conflict is not mentioned in Franks. The NTEU decision can't explain away what the Supreme Court meant in the original 1976 opinion: the protection of victims of discrimination will not be denied merely because the action may affect the interests of other employees. (210)

To determine whether a discrimination "complaint" pursuant to the Civil Rights Act should be considered a "grievance" under the FSLMRS, one must look to the text of the Civil Rights Act for definitions of the term. Unfortunately, neither grievance nor complaint is specifically defined in the Civil Rights Act. Both of these terms, however, are used in the act and much can be learned by the context in which they are mentioned.

The term "grievance" is used once in the Civil Rights Act, as part of the definition of "labor organization." "The term 'labor organization' means a labor organization ... which exists for the purpose ... of dealing with employers concerning grievances." (211) This use of the term demonstrates grievances are something unions deal with and that Congress did consciously consider the term "grievance" when creating the Civil Rights Act.

The term "complaint" is used seven times in the Civil Rights Act. It is used twice in the context of an action filed in a court, as in [section] 2000e-5. [Section 706](g)(1): "If the court finds that the respondent has intentionally engaged in or is intentionally engaging in an unlawful employment practice charged in the complaint, the court may enjoin the respondent from engaging in such unlawful employment practice...." The term "complaint" is also used five times in the Civil Rights Act to mean an allegation which has been filed with the appropriate authority, but which is short of an action filed in a court. It is used in this context three times in [section] 2000e-16.

The term "charge" is not used in EEOC regulations, so it appears not to be at issue in the Dover AFB case. However, it is used throughout the Civil Rights Act (over 30 times) in the exact same context as the second use of complaint. In the context of the Civil Rights Act, charge means allegation filed with the appropriate authority. For example, [section] 2000e-3 states (emphasis added): "It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment ... because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter." In addition, see [section] 2000e-5 (b), where the term is used nine times in this context. (212)

It is unclear why Congress chose to use two different terms, complaint and charge, to mean the exact same thing. What is clear, however, is that Congress did understand the difference between a complaint and a grievance. In the only mention of grievance in the Civil Rights Act, there is absolutely no indication Congress intended the term to include a complaint or claim of discrimination under the provisions of the statute. The only reason the term grievance was used in the Act at all was to clarify the definition of union, which was necessary because unions are subject to the provisions of the Civil Rights Act. By using the term grievance in the way it did, however, Congress demonstrated it had not merely overlooked the term in creating the statute. Instead, it intended a complaint to mean something different and independent of a grievance. Had the Dover AFB court consulted the Civil Rights Act to interpret the process for resolving alleged violations of that act, it would have come to the proper conclusion that a discrimination complaint is not a grievance, and would have reversed the FLRA's decision.

To further clarify if a "complaint" of discrimination made pursuant to EEOC regulations should have been considered a "grievance" in Dover AFB, the court should have analyzed the EEOC regulations guiding the complaint process. Since the EEOC has been given the authority to create and enforce rules pursuant to the Civil Rights Act, its interpretations in this area should be given Chevron deference, not the FLRA's. The EEOC's rules pertaining to government agencies are very clear in distinguishing a complaint of discrimination under the EEO process from a grievance under a negotiated grievance procedure. Consider 29 C.F.R. [section] 1614.301, titled "Relationship to negotiated grievance procedure:"
      When a person is employed by an agency
   subject to 5 U.S.C. 7121(d) and is covered by a
   collective bargaining agreement that permits allegations
   of discrimination to be raised in a negotiated grievance
   procedure, a person wishing to file a complaint or a
   grievance on a matter of alleged employment
   discrimination must elect to raise the matter under
   either part 1614 or the negotiated grievance procedure,
   but not both ... An aggrieved employee who files a
   complaint under this part may not thereafter file a
   grievance on the same matter ... Any such complaint
   filed after a grievance has been filed on the same matter
   shall be dismissed without prejudice ... (213) (Emphases
   added)


The EEOC rule is clear, a grievance pertains to an allegation brought pursuant to a negotiated grievance procedure, and a complaint is an allegation made pursuant to the EEO rules. By carefully explaining how an employee who files a discrimination "complaint" is prohibited from filing a "grievance" covering the same matter, and vice versa, this section of 1614 makes it absolutely certain the EEOC distinguishes the meaning of a complaint under the EEO process from the meaning of a grievance under a negotiated grievance procedure. They are not the same. Had the Dover AFB court properly consulted the EEOC rules to interpret the complaint process set up therein, it would have come to the conclusion that a discrimination complaint using the EEOC-designated process is not a grievance under the FSLMRS, thus the union had no right to attend the mediation in question.

4. Failure to Consider Mediation Session as a Formal Discussion

In addition to consulting the Civil Rights Act and EEOC rules to determine if a discrimination complaint was a "grievance," the Dover AFB court should have looked to these authorities to determine whether the mediation was a "formal discussion" for the purposes of the FSLMRS. Instead, the court ignored the issue and simply related: "The ALJ concluded that the mediation constituted a formal discussion within the meaning of section 7114(a)(2)(A) of the Act" without any analysis of how the ALJ came to this conclusion. (214) This is a massive oversight. Formality of a meeting is one of the four elements the FLRA uses to determine if a union has a right of representation; (215) a conclusion that a meeting is not formal would be dispositive of a case. Yet, the Dover AFB court chose not to consider this critical issue.

Since the Dover AFB court neglected to consider the formality of the mediation session but implicitly accepted the ALJ's ruling, an analysis of the ALJ's reasoning and the FLRA's acceptance of it are in order. Although the mediation in question was conducted pursuant to EEOC regulations guiding the provisions of the Civil Rights Act, the ALJ failed to consult either of those authorities to determine whether the session was formal. This interpretive error is similar to the one the Dover AFB court made in ignoring EEOC regulations and the Civil Rights Act when determining whether or not a discrimination complaint should be considered a grievance.

Instead of consulting the Civil Rights Act and EEOC rules, the ALJ used a seven-factor totality of circumstances test from FLRA case law to conclude the mediation session was formal. (216) Subsequently, the FLRA concurred with the ALJ's decision to apply FLRA case law rather than EEOC guidance. Unlike the ALJ or the Dover AFB court, however, the FLRA specifically addressed the conflict between its ruling and EEOC direction.
   The fact that the EEOC has required agencies to
   establish ADR procedures in an effort to informally
   resolve complaints is not determinative of whether a
   meeting to discuss such a complaint is a formal
   discussion under [section] 7114(a)(2)(A). Rather, that
   determination can be reached only after application of
   the Authority's formal discussion criteria. (217)


The FLRA went on the say that, although the EEOC has released guidance on this issue, it need not be followed.
   We recognize that the EEOC has opined, in the
   comments announcing its ADR rule, that the activity
   conducted in connection with an agency ADR program
   during the EEO process would not be a formal
   discussion within the meaning of the Civil Service
   Reform Act.... However, we reject the Respondent's
   argument that Chevron requires that we defer to the
   EEOC's view in this regard. First, interpretations
   which lack the force of law--do not warrant Chevron-style
   deference.... The EEOC's comments do not
   have the force of law. Second, Chevron only grants an
   agency deference when it is offering a permissible
   construction of the statute which it administers. The
   passage quoted from the Federal Register reflects that
   the EEOC has interpreted the Federal Service Labor-Management
   Relations Statute which is administered by
   the Authority, not the EEOC. (218) (Citations omitted)


Although the FLRA's resolution of the apparent conflict between the FSLMRS and the Civil Rights Act is incorrect, it admirably acknowledged the issue and made a clear decision. The Dover AFB court passed over this critical issue without even mentioning the FLRA had ruled on it. The court merely mentioned that the ALJ, who analyzed the issue only using FLRA case law and ignored the fact the EEOC had issued guidance on the issue, determined the meeting was formal. (219) Two agencies had published conflicting opinions on a critical issue in the Dover AFB case: whether an ADR session constitutes a formal meeting under 5 U.S.C. [section] 7114 (a)(2). This should have indicated to the Dover AFB court that the issue is both unsettled and important enough to be considered by the court. The Dover AFB court, however, passed on the opportunity to clear the confusion. (220)

Analyzing the FLRA's conclusion in its Dover decision that prior FLRA decisions should take precedence over EEOC guidance and the text of the Civil Rights Act, it is clear the FLRA is doing exactly what it accuses the EEOC of in its opinion: interpreting the other agency's organic statute. In its ruling defining the nature of an EEOC process, the FLRA usurped the EEOC's authority to interpret its enabling statute.

Because of the nature of the controversy, it is unlikely this issue would be considered in an EEOC hearing, which would allow the Commission to challenge the FLRA's interpretation. The formality of discrimination complaints isn't normally disputed in EEOC hearings. Thus, the FLRA ruling is the only interpretation reasonably available for review by a court. The EEOC could issue a rule regarding its interpretation, (221) but the rulemaking process is infinitely more difficult than making a ruling in an administrative hearing. The fact the FLRA has a forum for ruling on the issue may procedurally give it the upper hand, however, the EEOC's opinion on the matter is confirmed by the text of the Civil Rights Act, which should lead a reviewing court to determine the EEOC's interpretation is the correct one.

The controversy in the Dover AFB case arises from a mediation session held pursuant to the Civil Rights Act, not the Federal Service Labor-Management Relations Statute. Nevertheless, it is appropriate to use the Labor statute to identify the criteria necessary to determine whether union representation was required at the meeting between management and bargaining unit employees. To determine whether mediation meets the criteria, however, it is proper to look to the statute and rules that created and govern the mediation session at the center of the controversy to determine its formality.

When discussing the formality of the process it set up, the EEOC is interpreting its own rules and organic statute, not the Federal Service Labor-Management Relations Statute as alleged by the FLRA. For this issue, the EEOC should be given deference in its interpretation. To quote the FLRA in its Dover AFB decision, "Chevron only grants an agency deference when it is offering a permissible construction of the statute which it administers." (222) In interpreting the formality of a mediation session undertaken pursuant to the Civil Rights Act, the EEOC is "offering a permissible construction of the statute which it administers." (223) When the FLRA interprets that same mediation session, it is interpreting a statute another agency administers.

An EEOC interpretation of whether the mediation of a complaint of discrimination filed pursuant to the Civil Rights Act is a "formal discussion" should be given great deference; however, the greatest weight should be given to the interpretation found within the text of the statute itself. The Civil Rights Act mandates the EEOC use informal methods to resolve discrimination complaints. (224) "If the Commission determines after such investigation that there is reasonable cause to believe that the charge is true, the Commission shall endeavor to eliminate such alleged unlawful employment practices by informal methods of conference, conciliation, and persuasion." (225) This language clearly demonstrates that Congress intended "the methods of conference, conciliation, and persuasion" to be considered informal.

As discussed earlier, the definitions of these terms in Black's Law Dictionary (226) demonstrate that mediation of discrimination complaints is indeed a method of conference, conciliation and persuasion. Mediation fits so clearly within these definitions that it is specifically mentioned within the definition of conciliation. (227) To further demonstrate the point, Black's Law Dictionary defines mediation as a:
   Private, informal dispute resolution process in which a
   neutral third person, the mediator, helps disputing
   parties to reach an agreement. The mediator has no
   power to impose a decision on the parties. See also
   Alternative Dispute Resolution; Arbitration;
   Conciliation. (228) (Emphasis added)


Congress' intent that mediation of discrimination complaints be considered an informal process is unmistakable upon a review of the text of the Civil Rights Act. Had the Dover AFB court chosen not to ignore the "formal meeting" question but had properly analyzed the issue using the text of the Civil Rights Act, it would have determined in Chevron step one that the mediation of the discrimination complaint was not a formal meeting. (229)

The mandate requiring agencies to attempt informal resolution of discrimination complaints exists even after a formal complaint has been filed. The statute, 42 U.S.C. 2000e-5, commands agencies "after such investigation" to "endeavor to eliminate any such alleged unlawful employment practice by informal methods" Since investigation only occurs after a formal complaint has been filed, it is clear Congress intended for the "methods of conference, conciliation, and persuasion" conducted after a formal complaint is filed to be considered informal.

The use of the term "formal complaint" has caused some courts confusion, including the Ninth Circuit in VA v. FLRA. (230) These courts fall into the trap of 'comparing apples to oranges' by equating a "formal complaint" with a "formal basis" of complaint resolution. (231) They assume Congress intended that once a "formal complaint" is filed, the rest of the process of complaint resolution is "formal." This is an incorrect reading of the statute, as it is clear Congress intended for informal methods of dispute resolution to continue throughout the process.

Although the Dover AFB court did not analyze the issue of whether the mediation was a formal discussion for the purposes of requiring union representation under the FSLMRS, there is evidence in the opinion that the court fell into the trap of equating the formal grievance with a formal process, leading to the conclusion that the mediation was a formal meeting. Quoting its decision in NTEU, the court states: "IRS Fresno appears 'to be based primarily on its conclusion that the precomplaint conference did not constitute a 'formal' discussion' rather than on its brief analysis of the grievance issue." (232) The Dover AFB court seems to have read the IRS Fresno decision to say the mediation was informal merely because it was a "precomplaint conference." This weakness in the IRS Fresno case was discussed earlier in this article. The mediation in IRS Fresno was informal because mediation is an "informal method" as described in the Civil Rights Act. (233)

The text of the Civil Rights Act (234) demonstrates the Dover AFB court's interpretation of the IRS Fresno decision to be contrary to Congress' intent. Agencies are directed to attempt to resolve complaints using "informal methods" of dispute resolution even after the investigation has begun, which occurs after the formal complaint has been filed. Congress intended for mediation of discrimination complaints to be informal, regardless of whether a complaint has been filed.

While not as powerful as an interpretation based upon the statutory text, an interpretation based upon EEOC regulations related to the issue should receive Chevron deference since, in the regulations, the EEOC is "offering a permissible construction of the statute which it administers." (235) While the EEOC regulations do not directly address the issue of formality, the text of the EEOC rules (236) infers the process should be informal. The mandate od29 C.F.R. [section] 1614.102(b)(2) requires government agencies to create an alternative dispute resolution program which "must be available for both the pre-complaint process and the formal complaint process." Further, [section] 1614.104(b) directs the EEOC to ensure the "agency makes reasonable efforts to resolve complaints informally." Finally, [section] 1614.108(b) encourages agencies to "incorporate alternative dispute resolution techniques into their investigative efforts in order to promote early resolution of complaints." These provisions in the EEOC rules are indications the Commission has interpreted the ADR provisions it mandates to be informal and that these informal processes are to be used throughout the complaint cycle.

This EEOC interpretation is acknowledged by the FLRA in their Dover AFB and AFGE opinion: "the EEOC has required agencies to establish ADR procedures in an effort to informally resolve complaints" (237) Additionally, in that opinion, the FLRA stated: "We recognize that the EEOC has opined, in the comments announcing its ADR rule, that the activity conducted in connection with an agency ADR program during the EEO process would not be a formal discussion within the meaning of the Civil Service Reform Act. 64 Fed. Reg. 37, 644, 37, 645 (1999)." (238)

The FLRA concluded the EEOC comments made when creating its ADR program should not be given Chevron deference because the comments did not have the force of law. However, the rules in [section] 1614 discussed above and acknowledged by the FLRA to require government agencies "to establish ADR procedures in an effort to informally resolve complaints" (239) do have the force of law so should receive Chevron deference. Most importantly, the text of the statute unambiguously states that these ADR procedures are informal, so the analysis should never get to the second stage of the Chevron test, determining if the agency interpretation is a "permissible construction of the statute." (240) The text of the Civil Rights Act, which mandates an attempt at informal resolution throughout the complaint process, should be controlling on this issue. The EEOC rules, which are consistent with the Act and are binding on federal agencies, should also be given deference.

5. Misplaced Reliance on NTEU

The D.C. Circuit Court should have consulted the Civil Rights Act and EEOC rules to determine whether an EEO complaint was a grievance for the purposes of 5 U.S.C. [section] 7114(a)(2)(A). However, even if one were to accept the FLRA's argument that the proper analysis should look to the FSLMRS for this interpretation, the Dover court failed to discover indications in that statute of how Congress did not intend to have a discrimination complaint be included in the meaning of grievance. Instead it relied on its previous decision in NTEU which, it said, relied "upon the text, structure, and legislative history of the Act and did not rest on the type of grievance in question." (241) A closer look at the NTEU case, however, illuminates serious flaws in the decision.

In the NTEU case, the D.C. Circuit Court of Appeals considered the question of whether an appeal filed pursuant to a statutory process was considered a grievance for the purposes of the FSLMRS provision requiring the opportunity for union representation at "any formal discussion" between members of the agency and employees of the unit "concerning any grievance." (242) The statutory process at the center of the issue in NTEU was an appeal to the Merit Systems Protection Board (MSPB) which the FLRA had determined did not concern a grievance. The court reversed the FLRA decision by holding an appeal before the MSPB does concern a grievance; thus the union did have the right to be represented at any formal discussion concerning the appeal. (243) The NTEU court based its decision on a reading of the definition section of the FSLMRS, which defines "grievance" as: "any complaint by any employee concerning any matter relating to the employment of the employee." (244) By looking at just this section of the law, it appears Congress intended a grievance to cover all complaints relating to employment. The NTEU court adopted this conclusion and, in footnote 4 of its decision, the court uses an edited excerpt of 5 U.S.C. [section] 7121 to argue nothing in the FSLMRS indicates statutory complaints should be excluded from the definition of "grievance." (245) A thorough reading of the entire statute, however, illuminates that Congress did not intend for the term of "grievance" to be so widely defined. In a section of [section] 7121 (d), edited out of note 4 of the NTEU decision with ellipsis marks, there is evidence Congress intended the meaning of "complaint" to be distinct from "grievance." The portion of [section] 7121(d) omitted from footnote 4 reads:
   An employee shall be deemed to have exercised his
   option under this subsection to raise the matter under
   either a statutory procedure or the negotiated procedure
   at such time as the employee timely initiates an action
   under the applicable statutory procedure or timely files
   a grievance in writing, in accordance with the
   provisions of the parties' negotiated procedure,
   whichever event occurs first. (Emphasis added)


This demonstrates Congress intended an "action under the applicable statutory procedure" to be different from a "grievance" in the FSLMRS. If Congress had intended a grievance to encompass both statutory complaints and contractual complaints, it would have referred to both an action under the statutory procedure and a grievance under the labor contract as grievances. The NTEU interpretation of the FSLMRS, which it reaches by omitting this section of [section] 7121(d), renders the "initiates an action" language of the statute superfluous. This violates the rule against surplusage. (246) "A construction which would leave without effect any part of the language of a statute will normally be rejected." (247) Thus, the appropriate interpretation of [section] 7121(d) concludes an action under a statutory procedure is different than a grievance pursued under a negotiated grievance procedure.

Later in the NTEU decision the court stated: "Absent some more positive indication that Congress in fact meant in all circumstances to exclude the union from any formal discussion of matters raised in the alternative statutory procedures" it would reject the contention that actions under the statutory procedures were separate from grievances under the FSLMRS. (248) The court goes on to say: "Such a reading of 'grievance' strains the language of the statute at every turn." (249) However, Congress did give a positive indication that an "action under the applicable statutory procedure" should be distinguished from a grievance by referring to each separately in [section] 7121(d), the NTEU court simply decided to ignore this language in making its decision. Such a reading of 'grievance' doesn't "strain the language of the statute" but is based on text of the statute. By editing out this part of [section] 7121(d) from statutory language it cited in its decision, the NTEU court chose not only to ignore this wording, but to actively omit this language from its consideration.

The NTEU court continues its argument by stating [section] 7121(d) would not use the term "'aggrieved employee" (emphasis in original) (250) to describe an employee who must choose either the negotiated grievance procedure or the statutory procedure unless both terms constituted a grievance. The NTEU court reasoned:
   if the term 'grievance' referred only to disputes pursued
   through negotiated grievance procedures, [section] 7121 (d) and
   (e) would not be worded to require an 'aggrieved
   employee' (emphasis supplied by court) to elect to
   pursue a remedy under either a negotiated procedure or
   a statutory procedure. An 'aggrieved' employee--/e,
   one with a grievance--would by definition necessarily
   pursue his grievance under a negotiated procedure. (251)


The court, however, never cites any statutory language, case law, or dictionary for its definition of "aggrieved." The term "aggrieved" is not defined in the FLMRS, and the context in which it is used in the Act does not clearly indicate whether the term is general, meaning it could identify a person with any claim of injustice, or specific, referring to one with a "grievance" which should be processed through a negotiated grievance procedure, as defined by the NTEU court. Contrary to the NTEU court's ruling, the term should not be assumed to mean "one with a grievance" simply because the words are similar. In the 42 U.S.C. [section] 2000e-5, Congress uses the terms "complaint," "grievance," and "aggrieved" in the following way: "An aggrieved employee who files a complaint under this part may not thereafter file a grievance on the same matter." (Emphasis added) Clearly, Congress recognizes an "aggrieved" individual does not necessarily mean someone who has filed a grievance under a negotiated grievance procedure, but can also be a person filing a complaint of discrimination under the EEOC process. The term is used similarly in EEOC regulations at 29 C.F.R. [section] 1614.301. Finally, in a search of thirteen definitions from six separate dictionaries, (252) only one defined "aggrieved" as "having a grievance."

The court in NTEU assumes that since the term aggrieved is structurally similar to the term grievance, they must mean the same thing. A search of dictionaries and at least one other section of the Code proves this reasoning to be flawed. The conclusion resulting from this reasoning, that any complaint an aggrieved employee has must be a grievance, is thus incorrect.

Further analysis of [section] 7121 (d) leads to the question of why there is a separate process available for statutory complaints; why doesn't the union-negotiated process apply for all complaints and grievances? The answer lies in the fact that, in the grievance procedure, the union is asserting and defending collective rights held by all members of a bargaining unit. Appropriately then, the union has the final say on whether or not a grievance brought on behalf of an employee it represents will go to arbitration. (253) In contrast, complainants bringing an action under a statutory procedure are asserting an individual right in which the union has no role and in which the rights of the members of the bargaining unit as a whole may conflict. The employee's interest is in resolution of the issue. This process must be controlled by the individual complainant without outside interference from any person or organization, including a union.

Congress recognized the tension between collective rights and individual rights. To address this conflict, it created a separate process for each to ensure disputes would be handled appropriately. (254) This fact was recognized by the Ninth Circuit in IRS Fresno, when it determined that the union had no institutional role in processing of EEOC complaints. (255) Congress did not intend to give unions the ability to influence whether or how an individual or an agency will settle a discrimination complaint, but forcing their presence in mediation sessions gives them that power. The individual right of an employee to have his or her discrimination complaint addressed must be free from intervention or obstruction of a labor union.

In NTEU, the D.C. Circuit Court does identify language which offers some support for its holding that the term grievances in the FSLMRS includes statutory claims such as EEO complaints. (256) However, it not only ignores the contrary language discussed earlier, it asserts that no alternative interpretations exist.
   In the absence of congressional intent to the contrary or
   any plausible alternative interpretation of the statute by
   the FLRA, we find that the words of [section] 7114(a)(2)(A),
   which provide that an exclusive representative has the
   right to be present at any formal discussion of a
   grievance between management and a bargaining unit
   employee, assure the union a role in the alternative
   procedures so long as the statutory criteria of [section]
   71 14(a)(2)(A) are met. (257) (Emphasis in original)


The NTEU court either missed or ignored the evidence of contrary legislative intent within the text of the FSLMRS which leads to a "plausible alternative interpretation." The opinion's careful editing of [section] 7121 (d) in footnote 4 leads the reader to surmise they may have known the language indicating a contrary interpretation existed, but chose not to acknowledge it.

The NTEU court disregarded indications in the text of the FSLMRS that Congress intended complaints filed pursuant to statutory processes to be distinct from grievances filed pursuant to a negotiated grievance procedure. Unfortunately, the Dover AFB court did not reexamine the FSLMRS when concluding EEO complaints are grievances for the purposes of the FSLMRS, but merely relied on its decision in NTEU. This led to a continuation of a poor decision.

The court in Dover AFB did make one other relevant point regarding its NTEU analysis which merits discussion. The Air Force argued the NTEU decision, which ruled an MSPB appeal concerns a grievance, should be distinguished from the situation in Dover AFB, which pertained to an EEO mediation. The Air Force identified that the Ninth Circuit made this distinction between its ruling in IRS Fresno (EEO mediation) and its ruling in Department of Veterans Affairs Medical Center v. FLRA (MSPB appeal). (258) The Dover court responded by asserting there was a major flaw in the Air Force's argument. "the Ninth Circuit itself has noted that our reasoning in NTEU, rejecting the IRS Fresno_analysis, is more persuasive than that court's own reasoning in IRS Fresno." (259) This appears to be quite a repudiation by the Ninth Circuit of its IRS Fresno decision. However, looking at the Ninth Circuit's more recent ruling in Luke AFB, the cited language has little effect.

In footnote 4 of VA v. FLRA, (260) the Ninth Circuit stated: "While IRS Fresno is not applicable here, we note that the reasoning of the District of Columbia circuit in NTEU I, rejecting the IRS Fresno analysis, is more persuasive." This is dicta, not a holding, located within a footnote. A much more convincing indication of the Ninth Circuit's view of any inconsistencies between its opinion in IRS Fresno and the D.C. Circuit's opinion in NTEU comes from the Luke AFB opinion. In Luke AFB, which was decided after NTEU, the Ninth Circuit followed IRS Fresno in holding that the mediation of an EEO dispute did not concern a grievance for the purpose of the FSLMRS, thus the union had no right to representation. (261) While dicta praising the reasoning from another circuit court's opinion may be persuasive, the fact a court actually follows its own contrary case law in a later case is certainly more so and is truly indicative of the law in that circuit.

6. Dismissal of Administrative Dispute Resolution Act Argument

The Dover AFB court dismissed the Air Force's argument that the FLRA ruling violated the ADRA, reasoning that the "provisions of the ADR Act (262) cited by the Air Force concern only the confidentiality of the communications made at an ADR proceeding and do not address what persons or parties may attend an ADR proceeding." (263) This line of reasoning, however, makes no sense. The court acknowledges the ADRA "concern(s) the confidentiality of communications made at an ADR proceeding," (264) but apparently fails to recognize that allowing other individuals to attend a mediation session makes it impossible to keep the communications made during the session confidential from them.

Following this line of thinking to its natural extreme leads to the conclusion that the mediation sessions could be open to the public, anyone could attend, and the ADRA would only apply to the subsequent release of communications made during the mediation. The Dover AFB court's ruling does not distinguish between the private caucuses and the joint sessions, thus even the complainant's individual caucus with the mediator would be open. Additionally, a thorough reading of the ADRA demonstrates that the confidentiality provisions of the Act are only applicable to the parties and the neutral. (265) Thus, while the parties and the neutral are forced to keep the information discussed confidential, any non-party attendee would be allowed to publicize any communications made during the session. This interpretation leads to an entirely absurd result, which certainly cannot be what Congress intended when creating the ADRA.

Even if the court ignores that its reasoning would allow the general public to attend these mediation sessions, it needs to acknowledge that the ADRA only imposes its confidentiality requirements upon the parties and the neutral. Thus, the union, which the court is requiring be represented at mediation sessions, is not subject to the confidentiality provisions of the Act. Consequently, while the parties cannot make public what has been discussed during mediation, the union can. As discussed earlier, management cannot put conditions on a union's representational rights under 5 U.S.C. [section] 7114(a)(2)(A). If a union has a right per [section]7114(a)(2)(A) to be invited to a mediation, an agency cannot make a union's invitation contingent upon its signing a confidentiality agreement. Thus, if the ADRA does not prohibit a union from releasing the information disclosed in a mediation, which it doesn't since the union is a non-party, they can disclose all information they wish. This is also an absurd result, and cannot be what Congress intended when passing the confidentiality provisions of the ADRA.

A court could extend the confidentiality rules of the ADRA to include unions, but that would be writing into the law what Congress has not. The plain reading of the statute indicates the confidentiality provisions only apply to the parties and the neutral. As Justice Scalia said in the DOD v. FLRA opinion (quoting Connecticut Nat. Bank v. Germain): "We have stated time and again that courts must presume that a legislature says in a statute what it means and means in a statute what it says there." (266)

In the FLRA's Dover AFB and AFGE (267) decision, the Authority came to a more reasonable, yet still incorrect, conclusion, which the Dover AFB court mentioned but did not specifically adopt. The FLRA ruled that the union was "a party under the ADR Act because it was 'entitled as of right to be admitted,' 5 U.S.C. [section] 551(3), (268) pursuant to its formal discussion rights under section 7114(a)(2)(A) (269) of the (FSLMRS)." (270) While the reasoning that the union is a party in its own right provides an explanation for why the union should be allowed to attend a mediation session, as discussed earlier the union does have an interest in the result, it also leads to an absurd result.

Under the ADRA, the parties have equal rights. They have the right to decide whether to enter into ADR, (271) the right to approve or disapprove the chosen mediator, (272) the right to decide not to release information regarding communications within the mediation, (273) and the right to approve or disapprove any alternate disclosure rules. (274) Thus, if a union is considered a "party" for the purpose of the ADRA, it would have veto power over each of the aforementioned subjects. In fact, it would be able to veto each proposed use of ADR itself. If a particular union did not like the ADR process, or if it felt it could gain bargaining leverage by doing so, it could completely stop the use of ADR of EEO complaints by the members of its bargaining unit. This would directly interfere with a complainant's individual right to adjudicate his or her discrimination complaint in the manner he or she desires. This cannot be the intent of Congress. The ADRA and the mandate that agencies attempt ADR in EEO complaints were created to assist employees and management in informally resolving problems, not to give unions additional leverage. Unions must not be considered parties for the purpose of the ADRA.

The court points out that the FLRA, as an alternative, ruled the ADRA "contemplates the attendance and participation of 'nonparty participants.' 5 U.S.C. [section] 574 (a)(1)(e)." (275) This is accurate, however, Congress was not referring to actual participants in the process, but meant witnesses when discussing nonparty participants. If Congress intended "nonparty participants" to mean a person or organization which would be participating in the entire process, it would have specifically applied the confidentiality rules to those entities as well. As discussed above, only the parties and neutrals are covered by the confidentiality provisions of the ADRA. Congress could not have intended for someone who is not covered by the confidentiality provisions of the ADRA to fully participate in an ADR session, for it would defeat the purposes of confidentiality, to provide for free and open discussion amongst the parties.

Finally, in a footnote, the Dover AFB court questioned whether the ADRA even applied to the case. "It is not entirely clear the ADR Act is applicable in this case. The ADR Act by its terms is voluntary and merely supplements, rather than limits, other available ADR techniques." (276) This is a proper reading of the ADRA, since agencies typically have the authority to use, or not to use, the provisions of the ADRA in their dispute resolution processes. However, the court ignores the fact that the EEOC has mandated the use of the ADRA by the Air Force and other government agencies. The EEOC's Policy Statement on ADR (277) specifically states the confidentiality provisions of the ADRA apply to ADR of EEO complaints. The provisions of the ADRA did apply to the Dover AFB case and, for the Air Force, they were not voluntary.

7. Dismissal of Privacy Act Argument

Like the argument that the FLRA's order violated the ADRA, the court rejected the Air Force's contention that mandating union participation at mediation sessions was contrary to the Privacy Act without analyzing the issue. As previously discussed, the government's Privacy Act argument could be its strongest since it is not contingent on which source of law the court chooses to consult. The Privacy Act always applies as long as the information is a record located within a system of records and there are no relevant exceptions.

The court ignored the issues inherent in a Privacy Act analysis. Instead, it ruled: "the Privacy Act concerns the confidentiality of records rather than what parties may attend an ADR proceeding, 5 U.S.C. [section] 552(a), and this case does not present a situation where the presence of a union representative in an ADR proceeding would result in the revelation of confidential information in violation of the Privacy Act." (278) The court cited no case law to support this interpretation of the Privacy Act.

The court's ruling is completely contrary to the text of the Privacy Act and to case law interpreting it. Under the Act, no personal information contained in government records is to be released unless a statutory exception applies. (279) There is no distinction between information which is "confidential" and which is not. In fact, the term "confidential" is not used in the Privacy Act. (280) The criterion that information must be "confidential" to be restricted under the Act does not come from the text of the statute and is actually at odds with it.

The court's conclusion that the Privacy Act does not apply since the Act does not say who may attend an ADR session also ignores the fact that, in order to provide the union "notice" of the mediation session, the EEO office would have to, at the very least, inform the union about the existence of a discrimination complaint. The complaint itself is located within the EEO office's system of records. Thus, the simple act of providing the union notice of the session is a violation of the Privacy Act.

In addition, the mediator, who is hired by the agency, will be discussing at least the facts making up the basis of the complaint. These facts will come from the complaint file located in the EEO office's system of records. Case law indicates this too would be a violation of the Privacy Act. In a Fifth Circuit case from 2005, Jacobs v. National Drug Intelligence Center, (281) the court found: "A myriad of cases has held or assumed that the Act protects against oral disclosures." The court's reasoning in determining the Privacy Act does not create a conflict is not in consistent with the Act or with current case law.

The FLRA did consider the Privacy Act implications of providing information to a union in a 1997 exception to an arbitrator's award, General Services Administration and American Federation of Government Employees Council 236 (GSA II). (282) However, the FLRA's decision was extremely flawed. In its GSA H ruling, which dealt with whether a union had a right to participate in negotiations regarding the settlement of a member of the bargaining unit's MSPB appeal, the Authority properly explained the standard for which a disclosure is covered by the Privacy Act.
   The courts hold that a 'disclosure' within the meaning
   of the Privacy Act is the actual retrieval of any
   information from a 'record' within the meaning of that
   Act. (283) However, in Bartel (284) the Court of Appeals for
   the District of Columbia Circuit held that the 'actual
   retrieval' standard is inapplicable where a disclosure is
   made by agency personnel who had a role in creating
   the record that contains the released information." (285)


The agency argued it could not allow the union to attend the settlement negotiations because information regarding the employee's substance abuse problems would be discussed, and the Privacy Act prohibited such disclosure.

The Authority ruled against the agency, stating:
   The Agency argues that affording the Union the
   opportunity to attend settlement negotiations of MSPB
   appeals would necessarily result in the disclosure of the
   fact that an employee has appealed an adverse action to
   the MSPB and the fact that an adverse action had been
   taken against an identified employee. However, the
   Agency has not established that the Union's acquiring
   knowledge of those two events as a result of the Agency
   providing notice of, and the Union's attendance at,
   settlement negotiations would be related to information
   in, or retrieved from, a 'record' within the meaning of
   the Privacy Act. (286)


This begs the question, however, of where the information the agency was supposed to provide the union would come from. If the information did not come from records protected by the Privacy Act, or did not come from "'independent knowledge,' gained by the creation of records" per Wilborn, (287) where could this information have originated? It could not have appeared from thin air. The information must have been actually retrieved from a 'record,' (288) so it should have been protected by the Privacy Act.

GSA II was cited by the FLRA in subsequent cases regarding EEO complaints, Luke II (289) and Forest Service Goleta. (290) In both of these cases the Authority made similarly incorrect rulings by ignoring the fact that the information necessary to notify a union about an EEO complaint must come from a record located within a system of records; the EEO filing system is where such information is kept. In Forest Service Goleta, the court stated: "we find that the Respondent in this case has not demonstrated that the Union's acquisition of knowledge of the nature of the complaint as a result of the agency providing notice of, and the Union's attendance at, mediation and settlement discussions would require a retrieval of information in violation of the Privacy Act." (291) It is a mystery from where the FLRA believes that information would come, if not from the agency EEO files or from "'independent knowledge,' gained by the creation of records" per Wilborn. (292) The information must be "actually retrieved" from an EEO file in order to tell the union a complaint exists, who the complainant is, and who the alleged perpetrator is. This information is certainly protected by the Privacy Act.

If the court had analyzed the Privacy Act issues properly in the Dover AFB case, it would have found the Act prohibited the Air Force from providing union notice of and opportunity to attend the mediation. The first two issues in the Privacy Act analysis concern whether the information is a record within a system of records. (293) These issues were analyzed earlier in this article; discrimination complaints are definitely records located within a system of records.

The final issue is whether there is an applicable exception to the Privacy Act prohibition against release of personal information. This issue was also discussed in the section of this article relating to the Privacy Act; neither FOIA nor the FSLMRS provides an exception to the Privacy Act for EEO records. Thus, the provisions of the Privacy Act apply and the Air Force cannot inform the union about the discrimination complaint. It doesn't matter that another statute gives the union the right to represent its own interests. As the Supreme Court stated in DOD v. FLRA: "Speculation about the ultimate goals of the Labor Statute is inappropriate here; the statute plainly states that an agency need furnish an exclusive representative with information that is necessary for collective-bargaining purposes only 'to the extent not prohibited by law.' 5 U.S.C. [section] 7114(b)(4)." (294) Since the Privacy Act prohibits the Air Force from disclosing information regarding mediation of employment discrimination complaints, the court should have ruled it did not have to provide the union notice of and opportunity to attend the mediation session in Dover AFB.

VIII. THE FLRA SOLUTION.

There are two potential solutions to remedy the FLRA's insistence that union representatives be included in mediation of EEO complaints. The first, as happened in the cases discussed above: a federal agency could refuse to provide notice or to allow a union representative to attend a mediation session, which would probably result in the filing of an unfair labor practice against the agency. The FLRA Regional Director's Office would likely issue a complaint in the matter, and the issue could work its way up to the FLRA for a precedential decision, and on to a Federal Appeals court if any party objects to the FLRA ruling.

This process is currently ongoing, as the Denver Regional Director's Office has filed exceptions with the FLRA on a recent Administrative Law Judge's order. The ALJ dismissed the complaint which alleged the Air Force violated the FSLMRS by failing to provide the union notice of a mediation session of a bargaining unit member's discrimination allegation. (295) In its exceptions, the Denver Regional Office argued the mediation constituted a formal meeting between management and a bargaining unit member. The Air Force is currently preparing its response. (296)

This case is not expected to be addressed for some time. Currently, there are two vacancies on the three-member FLRA, which is unable to act unless at least two seats are filled. Positions on the FLRA are made by Presidential appointment with the advice and consent of the Senate. With the election being held later this year, it is unlikely any appointments to the FLRA will be made until 2009. Thus, there is no resolution expected in this case until the middle part of next year.

The process of battling an FLRA Regional Director's office in administrative and judicial hearings is long, expensive, and unpredictable. All federal agencies work with a finite amount of money and resources, so choosing to fight to defend management rights does have an affect on an agency's ability to accomplish its mission. While litigating this issue through the process set up in the FSLMRS may lead to the proper result, that mediation of discrimination complaints be truly confidential discussions between the parties, it is more appropriate that the burden for ensuring this result be borne by the EEOC.

IX. THE MORE COMPLETE ADMINISTRATIVE SOLUTION: EEOC LIMITATION OF UNION ATTENDANCE TO COMPLAINANT'S REPRESENTATIVE

The most appropriate and certain method for complying with the Civil Rights Act, the Privacy Act, the Administrative Dispute Resolution Act, Supreme Court holdings, and Equal Employment Opportunity Commission direction in regard to this issue is for the EEOC to issue a rule restricting attendance at mediation sessions conducted pursuant to EEOC regulations to the principal parties, their representatives, and the mediator or mediators. Third parties, i.e witnesses, who could provide information to the principal parties and the mediator should also be allowed if both principal parties agree. Creating such a rule would allow the EEOC to regain control of one of its most effective processes of resolving discrimination complaints.

Besides being contrary to law and legislative intent, requiring union representation in mediation of discrimination complaints works against the goal of free and frank discussion and creates a disincentive for both employees and management to engage in the process. If either party chooses not to engage in mediation due to the required presence of the union, it confounds the complainant's right to have his or her allegation resolved; perhaps the complaint which is defeated in litigation would have been settled through mediation. "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." (297)

Additionally, creating a disincentive for mediating complaints is contrary to the purpose of the Civil Rights Act, to ensure a discrimination-free workplace. The earlier an agency receives the facts of a truly meritorious claim, the earlier it can correct any discriminatory conduct or procedures, thus ensuring a fairer workplace for the complainant and the entire workforce. Forcing union presence upon the parties to these disputes serves only the unions.

The EEOC may be reluctant to issue such a rule, for, much like the adjudicative process, the administrative rulemaking process can be a long, onerous process. Managing the extended notice and comment period, and considering the dozens of comments which would certainly be filed by both federal agencies and employee unions, would be time consuming and expensive.

Undergoing this process, however, will ensure the fairest result since the administrative rulemaking process allows for comments from both sides of the issue to be considered by the experts in the field, the EEOC. The EEOC created and enforces the rules and regulations regarding mediation of EEO complaints; it is the agency which should direct how the process is conducted.

Additionally, a rule created by the EEOC specifically addressing the issue would be entitled to Chevron deference by the courts. An EEOC rule would be much more definitive than almost any result from the adjudicative process. Appellate court rulings are not truly binding on the FLRA and the other Circuits. Thus, unless the Supreme Court was to rule on the issue, which is unlikely, an EEOC rule would be the most controlling. Using the rulemaking process would provide certainty and would create the most appropriate result.

Finally, the EEO complaint process belongs to the EEOC; they are best equipped to understand and resolve the issue. They are also the proper agency to bear the burden of resolving this issue, because it directly affects the mission of the organization. The issue of whether or not unions must be invited to mediation sessions of their bargaining unit members' discrimination complaints must be resolved by the EEOC.

The most current and most binding case law, Dover AFB, which requires union representation at mediation of bargaining unit members' EEO complaints, is contrary to the Civil Rights Act, the FSLMRA, the ADRA, and the Privacy Act. The courts have failed to interpret these statutes properly, and in doing so have frustrated Congress' intent to allow free, frank and open communication in attempts to settle discrimination complaints. The administrative fix is awaiting implementation.

(1) Civil Rights Act of 1964 [section]717, 42 U.S.C. [section] 2000e-16(a) (2008).

(2) 5 U.S.C. [section] 7114(a)(2)(A) (2008).

(3) Department of the Air Force, Dover Air Force Base v. Federal Labor Relations Authority, 316 F.3d 280 (D.C. Cir. 2003).

(4) The Federal Labor Relations Authority is the entity charged with carrying out the provisions of the Federal Service Labor Management Relations Statute, 5 U.S.C. [section] 7101-7135, which governs the relationships between federal agency management and bargaining units which represent federal government employees.

(5) 42 U.S.C. [section] 2000e (2008).

(6) 5 U.S.C. [section][section] 7101-35 (2008).

(7) 5 U.S.C. [section] 552a (2008).

(8) This is also known as the "informal complaint" process. The term "informal complaint" has confused courts.

(9) Equal Employment Opportunity Commission Management Directive 110, (Nov. 9, 1999) [hereinafter EEO MD 110]

(10) Id. The complainant can agree to extend the pre-complaint phase.

(11) 29 C.F.R. [section] 1614.105(g).

(12) 29 C.F.R. [section] 1614.105(b)(2)(F).

(13) EEO MD 110, supra note 9, Chapter 2.

(14) An improper claim of discrimination would include a claim that an agency discriminated based upon some non-protected category: for example, based upon a complainant's favorite college football team. While it may not be proper under the Civil Service laws to discriminate against Kansas State Wildcat fans, it is not a violation under the Civil Rights Act to do so and a complaint brought through the EEO process would properly be dismissed.

(15) EEO MD 110, supra note 9, Chapter 3, para. II.C-D.

(16) EEO MD 110, supra note 9, Chapter 2, para. VI.4.

(17) EEO MD 110, supra note 9, Chapter 5.

(18) EEO MD 110, supra note 9, Chapter 3, para. VIII.A.

(19) EEO MD 110, supra note 9, Chapter 3, para. VII.A.3.

(20) 42 U.S.C. [section] 2000e-5 (2008) (emphasis added).

(21) WILLIAM ESKRIDGE, JR. PHILIP FRICKEY & ELIZABETH GARRETT, LEGISLATION AND STATUTORY INTERPRETATION 228 (2000).

(22) BLACK'S LAW DICTIONARY 296 (6th ed. 1990).

(23) Id. at 289, 290.

(24) Id. at 1145.

(25) The language directing the Commission to resolve complaints informally after investigation was part of the original bill establishing the Civil Rights Act in 1964. In 1972 the Civil Rights Act was amended to apply to federal agencies as well. The EEOC has authority to make rules pursuant to the Civil Rights Act. 42 U.S.C. [section]2000e-16(a) (2008). In 29 C.F.R. [section][section] 1614.104 and 1614.108, the EEOC delegated the responsibility for investigating and processing discrimination complaints to the individual agencies. Although not expressly stated, it is implied the statutory mandate to attempt to resolve discrimination claims informally after investigation was delegated to the agencies along with the responsibility to conduct the investigation itself. Finally, [section] 118 of the Civil Rights Act of 1991, passed after the authority to investigate and process claims had been delegated to the individual federal agencies, specifically encouraged the use of ADR to resolve claims. [section] 118 is codified in a note at 42 U.S.C. 1981 and reads: "Where appropriate and to the extent authorized by law, the use of alternative means of dispute resolution, including settlement negotiations, conciliation, facilitation, mediation, factfinding, minitrials, and arbitration, is encouraged to resolve disputes arising under the Acts or provisions of Federal law amended by this title.

(26) 29 C.F.R. [section] 1614.102(a) (2008).

(27) 29 C.F.R. [section] 1614.102(b)(2) (2008).

(28) Id.

(29) United States v. Mead Corporation, 533 U.S. 218 (2001) at 226-27 (citing Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc, 467 U.S. 837, 843-44 (1984)).

(30) 42 U.S.C. [section] 2000e-16 (2008).

(31) See Mead, 533 U.S. at 226-27.

(32) 42 U.S.C. [section] 2000e-8 (2008).

(33) 42 U.S.C. [section] 2000e-5 (2008).

(34) The term "proceeding" is not defined in the Civil Rights Act, but is used multiple times. According to the context in which it is used in the Civil Rights Act, "proceeding" is the equivalent of a formal hearing. Mediation would not be considered a proceeding in this context since mediation is, by definition, an informal process.

(35) 42 U.S.C. [section] 2000e-8 (2008).

(36) 449 U.S. 590 (1981).

(37) Id. at 598.

(38) Although Assoc. Dry Goods pertains to the application of the Civil Rights Act to private organizations and not government agencies, the opinion still provides valuable insight into the reasoning of the Supreme Court on the confidentiality of EEO complaints.

(39) In footnote 14, the Court reasoned: "The language in [section] 709(e) [42 U.S.C. [section] 2000e-5(b)] forbidding disclosure 'in any manner whatever,' seems clearly to refer to the means of publication, and not to persons to whom disclosure is forbidden." Assoc. Dry Goods, 449 U.S. at 599.

(40) Id. at 598.

(41) Id. at 596.

(42) Id. at 599 (citing 110 Cong. Rec. 12819 (1964) at 12723).

(43) Id. (citing 110 Cong. Rec. 8193 (1964)).

(44) EEO MD 110, supra note 9, Appendix H; Equal Employment Opportunity Commission Notice Number 915.002 (Jul. 10, 1997); Alternative Dispute Resolution Policy Statement, Equal Employment Opportunity Commission (Jul. 17, 1995) para. 3.

(45) Id.

(46) If the complainant chooses a union official as representative in the process, there is obviously a union representative in the mediation sessions who is privy to all information shared. This is unavoidable as the complainant has the right to a representative of his or her choice. It is likely management is not fully open in providing information in some situations where a union official attends in the role of complainant representative.

(47) Id.

(48) EEO MD 110, supra note 9, Chapter 3.II.A.3 and Appendix H, EEOC ADR Policy Statement, supra note 44.

(49) Assoc. Dry Goods, 449 U.S. at 599 (citing 110 Cong. Rec. 8193 (1964)).

(50) 29 C.F.R. [section] 1614.108(a) (2008).

(51) 29 C.F.R. [section] 1614.109(e) (2008).

(52) Id.

(53) EEO MD 110, supra note 9, at Chapter 3.II.A.3.

(54) The EEOC also recognizes the Privacy Act's prohibition on releasing information regarding discrimination complaints to unions. This critical issue will be discussed later in this article.

(55) EEO MD 110, supra note 9, Appendix H; EEOC ADR Policy Statement, supra note 44, at para. 7.II.B.3.

(56) Mead, 533 U.S. at 226-227. See discussion on Chevron in section IV.B. of this article.

(57) 29 C.F.R. [section] 1614.104(a) mandates compliance with EEOC Management Directives. It reads: "Each agency subject to this part shall adopt procedures for processing individual and class complaints of discrimination that include the provisions contained in [section][section] 1614.105 through [section] 1614.110 and in [section] 1614.204, and that are consistent with all other applicable provisions of this part and the instructions for complaint processing contained in the Commission's Management Directives."

(58) See Sacramone v. United States Postal Service, EEOC Office of Federal Operations, Appeal No. 01A52251 (Feb. 16, 2006). See also Harris v. Department of the Navy, EEOC Request No. 05941002 (Mar. 23, 1995); Elliott v. United States Postal Service, Appeal No. 01A52921 (Jun. 23, 2005); Dupor v. United States Postal Service, Appeal No. 01A35372 (Oct. 19, 2004); Andrews v. United States Postal Service, Appeal No. 01A34613 (Dec. 1, 2003); and, Montague v. Army, EEOC Request No. 05920231, May 7, 1992 citing Olitsky v. Spencer Gifts, Inc., 842 F.2d 123, 126-127 (5th Cir. 1988).

(59) Also know as its "enabling" or "organic" statute. Department of the Air Force, Dover Air Force Base v. Federal Labor Relations Authority, 316 F.3d 280, at 285 (D.C. Cir. 2003).

(60) Chevron, 467 U.S. at 837.

(61) The basis of the complainant's claim is not clear in the opinion. The complainant alleged discrimination based upon a disability and reprisal for prior discrimination complaints.

(62) Sacramone v. United States Postal Service, Office of Federal Operations, Appeal No. 01A52251 (Feb. 16, 2006).

(63) Harris v. Navy, EEOC Request No. 05941002 (Mar. 23, 1995).

(64) A complaint is required to go through a pre-complaint stage prior to filing an actual complaint of discrimination. An allegation in the pre-complaint stage is considered an "informal" complaint and an actual, filed compliant is considered a "formal" complaint. The processing of discrimination complaints is discussed in Part II of this article.

(65) Harris v. Navy, EEOC Request No. 05941002 (Mar. 23, 1995).

(66) Chevron, 467 U.S. at 837. See section IV.B. of this article for a discussion on Chevron deference.

(67) 5 U.S.C. [section] 571-581 (2008).

(68) EEO MD 110, supra note 9, Appendix H; EEOC ADR Policy Statement, supra note 44, at Chapter 7.II.B.3.

(69) A mediator is the neutral in a mediation session.

(70) A "dispute resolution communication" is defined in the ADRA as "any oral or written communication prepared for the purpose of a dispute resolution proceeding." 5 U.S.C. [section] 571(5) (2008).

(71) 5 U.S.C. [section] 574(a) (2008).

(72) 5 U.S.C. [section] 574(b) (2008).

(73) 5 U.S.C [section] 552 (2008).

(74) The Freedom of Information Act, at [section] 552(b)(3), reads in part: "This section does not apply to matters that are.... specifically exempted from disclosure by statute (other than [section] 552b of this title), provided that such statute (A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld."

(75) "EEOC's revised regulations at 29 C.F.R. [section] 1614.102(b)(2) required agencies to establish or make available an alternate dispute resolution program.... The Commission has developed an ADR Policy which sets forth core principles regarding the use of ADR." EEO MD 110, supra note 9, Chapter 3, para. I. "[T]he Commission will be guided by the nondisclosure provisions of the Civil Rights Act and the confidentiality provisions of ADRA which impose limitations on the disclosure of information." EEO MD 110, supra note 9 Appendix H; EEOC ADR Policy Statement, supra note 44, at paragraph 7.II.B.3.

(76) 5 U.S.C. [section] 552a (2008).

(77) 5 U.S.C. [section] 552a(b) (2008).

(78) Id.

(79) 5 U.S.C. [section] 574(j) (2008).

(80) EEOC MD 110, supra note 9, Chapter 3.

(81) 29 C.F.R. [section] 1614.104(a) mandates compliance with EEOC management directives: Each agency subject to this part shall adopt procedures for processing individual and class complaints of discrimination that include the provisions contained in [section][section] 1614.105 through 1614.110 and in [section] 1614.204, and that are consistent with all other applicable provisions of this part and the instructions for complaint processing contained in the Commission's management directives.

(82) 5 U.S.C. [section] 552a(a)(4) (2008).

(83) 5 U.S.C. [section] 552a(a)(5) (2008).

(84) Id.

(85) EEOC MD 110, supra note 9, Chapter 2 and Appendix A.

(86) 29 C.F.R. [section] 1614.105(d).

(87) EEOC MD 110, supra note 9, Chapter 3.

(88) 67 Fed. Reg. 49338 (Jul. 30, 2002).

(89) 510 U.S. 487 (1994).

(90) Id. at 497.

(91) 5 U.S.C. [section] 7114(b)(4) reads: "The duty of an agency and an exclusive representative to negotiate in good faith under subsection (a) of this section shall include the obligation ... to furnish to the exclusive representative involved, or its authorized representative, upon request and, to the extent not prohibited by law, data ... (A) which is normally maintained by the agency in the regular course of business; (B) which is reasonably available and necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining; and (C) which does not constitute guidance, advice, counsel, or training provided for management officials or supervisors, relating to collective bargaining;"

(92) DOD v. FLRA, 510 U.S. at 491-92.

(93) Id. at 491.

(94) Id. at 493-94.

(95) Id. at 495, (quoting Department of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749, 776 (1989).

(96) Id. (quoting Reporters Committee, 489 U.S. at 775).

(97) Id. at 497, (quoting Reporters Committee, 489 U.S. at 773).

(98) DOD v. FLRA, 510 U.S. at 498-99.

(99) Id.

(100) Id.

(101) Id. at 502-03.

(102) 5 U.S.C. [section] 5740) (2008).

(103) 423 F.3d 512, (5th Cir. 2005), 517-518, (citing: Orekoya v. Mooney, 330 F.3d 1 (1st Cir. 2003); Doe v. U.S. Postal Service, 317 F.3d 339 (D.C. Cir. 2003); Krieger v. Fadely, 211 F.3d 134 (D.C. Cir. 2000); Pippinger v. Rubin, 129 F.3d 519 (10th Cir. 1997); Henson v. NASA, 14 F.3d 1143 (6th Cir. 1994); Kimberlin v. U.S. Dep't of Justice, 788 F.2d 434 (7th Cir. 1986); Bartel v. Federal Aviation Administration, 725 F.2d 1403 (D.C.Cir. 1984); Doyle v. Behan, 670 F.2d 535 (5th Cir. 1982); Stokes v. Comm'r of Soc. See. Admin., 292 F.Supp.2d 178 (D.Me. 2003); Sullivan v. U.S. Postal Serv., 944 F.Supp. 191 (W.D.N.Y. 1996); Romero-Vargas v. Shalala, 907 F.Supp. 1128 (N.D.Ohio 1995); Brooks v. Veterans Administration, 773 F.Supp. 1483 (D.Kan. 1991); Savarese v. U.S. Dep't of Health, Educ., & Welfare, 479 F.Supp. 304 (N.D.Ga. 1979)) (all involving the oral disclosure of information).

(104) 948 F.Supp. 1077 (D. D.C. 1996).

(105) Id. at 1101.

(106) 510 U.S. 487 (1994).

(107) 489 U.S. 749 (1989).

(108) 5 U.S.C. [section][section] 7114(a)(1) states:
   A labor organization which has been accorded exclusive recognition
   is the exclusive representative of the employees in the unit it
   represents and is entitled to act for ... all employees in the
   unit. An exclusive representative is responsible for representing
   the interests of all employees in the unit it represents without
   discrimination and without regard to labor organization membership.


(109) 5 U.S.C. [section] 7114(a)(2), "An 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."

(110) 3 F.3d 1386, 1390 (10th Cir. 1993).

(111) 424 U.S. 747 (1976).

(112) NTEU v. FLRA, 774 F.2d 1181 (D.C. Cir. 1985).

(113) 5 U.S.C. [section] 7114(a)(1) (2008).

(114) DOD v. FLRA, 510 U.S. at 498-99.

(115) 316 F.3d 280 (D.C. Cir. 2003).

(116) 706 F.2d 1019 (9th Cir. 1983).

(117) Also known as "informal stage."

(118) IRS Fresno, 16 F.3d at 1023-24.

(119) Id. at 1024.

(120) Id. at 1025.

(121) The contractual grievance apparently alleged something other than discrimination; the decision did not identify the basis of the grievance, however.

(122) Id. at 1021-22.

(123) Since superseded by 29 C.F.R [section] 1614.105.

(124) IRS Fresno, 16 F.3d at 1022.

(125) Id.

(126) The FLRA held the union had a right to attend the session because they decided it constituted a discussion of a "grievance," as opposed to "general conditions of employment" which is what the ALJ determined was discussed.

(127) IRS Fresno, 16 F.3d at 1022.

(128) Superseded in 1992.

(129) IRS Fresno, 16 F.3d at 1021.

(130) Id. at 1023.

(131) Chevron was decided in 1994, the year after IRS Fresno. See discussion of Chevron deference in section IV.B. of this article.

(132) IRS Fresno, 16 F.3d at 1023.

(133) Id. (citing 29 C.F.R. [section] 1613.213(a)).

(134) Id. at 1024.

(135) Id. (citing 110 Cong. Rec. 8193 (1964)).

(136) IRS Fresno, 16 F.3d at 1024.

(137) Id.

(138) "any complaint ... by an employee concerning any matter relating to the employment of the employee"

(139) IRS Fresno, 16 F.3d at 1024.

(140) Id. at 1024-25.

(141) Id. at 1025.

(142) EEOC MD 110, supra note 9, which became effective Nov. 9, 1999.

(143) 29 C.F.R. [section]1613.213(a).

(144) 42 U.S.C. [section] 2000e-5 (2008).

(145) 42 U.S.C. [section] 2000e-8 (2008).

(146) 42 U.S.C. [section] 2000e-16 (2008).

(147) 42 U.S.C. [section] 2000e-5, 42 U.S.C. [section] 2000e-8(2008).

(148) 42 U.S.C. [section] 2000e-16 (2008).

(149) Equal Employment Opportunity Commission v. Associated Dry Goods Corp, 449 U.S. 590, 598 (1981).

(150) Id. at 598.

(151) IRS Fresno, 16 F.3d at 1023.

(152) Id.

(153) 316 F.3d 280 (D.C. Cir. 2003).

(154) 42 U.S.C. [section] 2000e-5 [706](b) (2008).

(155) 29 C.F.R. [section] 1613.213(a).

(156) IRS Fresno, 16 F.3d at 1023-24.

(157) Id. at 1024.

(158) Dover AFB, 316 F.3d 280 (D.C. Cir. 2003).

(159) 1999 U.S. App. LEXIS 34569.

(160) Id.

(161) 54 F.L.R.A. No. 75 (Aug. 13, 1998) Appendix 2, para. A.

(162) Luke AFB, 1999 U.S. App. LEXIS 34569.

(163) U.S. DEP'T OF AIR FORCE, INSTR. 36-1201, DISCRIMINATION COMPLAINTS, Attachment 1 (Jul. 25, 1994). The OCI has been replaced by the Investigations and Resolutions Division (IRD). U.S. DEP'T OF AIR FORCE, INSTR. 36-1201, EQUAL EMPLOYMENT OPPORTUNITY COMPLAINTS, paragraph 20.4 (Feb. 12, 2007)

(164) Luke AFB, 1999 U.S. App. LEXIS 34569.

(165) Id.

(166) 54 F.L.R.A. No. 75, at 725.

(167) Id.

(168) Id. (quoting Department of Veteran's Affairs Med. Ctr. v. FLRA, 16 F.3d 1526, 1529 (9th Cir. 1994)).

(169) Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc, 467 U.S. 837, 843-44 (1984).

(170) Id. (citing General Serv. Admin. v. American Fed'n of Gov't Employees, 48 F.L.R.A. 1348, 1354 (1994)).

(171) Id.

(172) IRS Fresno, 16 F.3d at 1023. Chevron was decided the year prior to IRS Fresno.

(173) Luke AFB, 1999 U.S. App. LEXIS 34569. The court is essentially giving Chevron deference to the FLRA's decision.

(174) 42 U.S.C. [section] 2000e-5 [706] (b).

(175) IRS Fresno, 16 F.3d at 1023.

(176) General Serv. Admin. v. American Fed'n of Gov't Employees, 48 F.L.R.A. 1348, 1354 (1994).

(177) 316 F.3d 280 (D.C. Cir. 2003).

(178) 316 F.3d 280 (D.C. Cir. 2003).

(179) Id. at 286.

(180) Id. at 283.

(181) Id. at 283.

(182) Id. at 284.

(183) 774 F.2d 1181 (D.C. Cir. 1985).

(184) Dover AFB, 316 F.3d at 284 (citing NTEU, 774 F.2d at 1187).

(185) Dover Air Force Base and American Federation of Government Employees, Local 1709, 57 F.L.R.A. no. 65.

(186) Id. at 307.

(187) Federal Labor Management Relations Statute, 5 U.S.C. [section] 7114(b)(4)(B) (2008).

(188) Dover AFB, 316 F.3d at 285.

(189) Chevron, 467 U.S. at 837. See discussion of Chevron deference in section IV.B. of this article.

(190) Id. (citing National Federation of Federal Employees, Local 1309 v. Department of the Interior, 526 U.S. 86, 99 (1999)).

(191) 5 U.S.C. [section] 7114(a)(2)(A) reads: A union "shall be given the opportunity to be represented at--(A) any formal discussion between one or more representatives of the agency and one of more employees in the unit or their representatives concerning any grievance or any personnel policy or practices or other general condition of employment."

(192) Dover AFB, 316 F.3d at 285.

(193) Id.

(194) Id. at 283.

(195) Id. at 286.

(196) 16 F.3d 1526 (9th Cir. 1994).

(197) Dover AFB, 316 F.3d at 286 (citing VA Med Ctr, 16 F.3d at 1534, note 4).

(198) Id. (quoting NTEU, 774 F.2d at 1189, note 12).

(199) Id. (emphasis in original).

(200) Id. at 286.

(201) Id. (citing 5 U.S.C. [section] 574).

(202) Id. at 287, note 1.

(203) Id. at 286-87.

(204) Id. at 287.

(205) Id.

(206) Id. (citing NTEU, 774 F.2d at 1189, note 12).

(207) Dover AFB, 316 F.3d at 285.

(208) Id. at 281, (citing 42 U.S.C. [section] 2000e-4 (2000)).

(209) 424 u.s. 747 (1976).

(210) Franks, 424 U.S. at 775.

(211) 42 U.S.C. [section] 2000e (2008).

(212) 42 U.S.C. [section] 2000e-5 reads:
   Whenever a charge is filed by or on behalf of a person claiming to
   be aggrieved, or by a member of the Commission, alleging that an
   employer, employment agency, labor organization ... has engaged in
   an unlawful employment practice, the Commission shall serve a
   notice of the charge ... on such employer, employment agency, labor
   organization ... within ten days, and shall make an investigation
   thereof. Charges shall be in writing under oath or affirmation and
   shall contain such information and be in such form as the
   Commission requires. Charges shall not be made public by the
   Commission. If the Commission determines after such investigation
   that there is not reasonable cause to believe that the charge is
   true, it shall dismiss the charge and promptly notify the person
   claiming to be aggrieved and the respondent of its action.... If
   the Commission determines after such investigation that there is
   reasonable cause to believe that the charge is true, the Commission
   shall endeavor to eliminate any such alleged unlawful employment
   practice by informal methods of conference, conciliation, and
   persuasion.... The Commission shall make its determination on
   reasonable cause as promptly as possible and, so far as
   practicable, not later than one hundred and twenty days from the
   filing of the charge or, where applicable under subsection (c) or
   (d) of this section, from the date upon which the Commission is
   authorized to take action with respect to the charge.


(213) 29 C.F.R. [section] 1614.301 (2008). The portions of 29 C.F.R. [section] 1614.301 which have been edited out for brevity's sake also demonstrate the difference between "grievance" and "complaint." They read:
   An election to proceed under this part is indicated only by the
   filing of a written complaint; use of the pre-complaint process as
   described in [section] 1614.105 does not constitute an election for
   purposes of this section.... An election to proceed under a
   negotiated grievance procedure is indicated by the filing of a
   timely written grievance. An aggrieved employee who files a
   grievance with an agency whose negotiated agreement permits the
   acceptance of grievances which allege discrimination may not
   thereafter file a complaint on the same matter under this part 1614
   irrespective of whether the agency has informed the individual of
   the need to elect or of whether the grievance has raised an issue
   of discrimination.... Any such complaint filed after a grievance
   has been filed on the same matter shall be dismissed without
   prejudice to the complainant's fight to proceed through the
   negotiated grievance procedure including the fight to appeal to the
   Commission from a final decision as provided in subpart D of this
   part. The dismissal of such a complaint shall advise the
   complainant of the obligation to raise discrimination in the
   grievance process and of the fight to appeal the final grievance
   decision to the Commission.


Id. (emphasis added).

(214) Dover AFB, 316 F.3d at 283.

(215) General Services Administration, Region 9 and American Federation of Government Employees, Council 236, 48 F.L.R.A. 1348, 1354 (1994) (GSA I). A union will have the fight to representation at a meeting under 5 U.S.C. [section] 7114(a)(2)(A) if each of the four criteria are met: 1) there is a discussion; 2) which is formal; 3) between a representative of an agency and a union-represented employee or the employee's representative; 4) concerning a grievance or general condition of employment.

(216) Dover Air Force Base and American Federation of Government Employees, AFL-CIO, Local 1709, Case No. WA-CA-00262, at B.2 (2001).

(217) Dover Air Force Base and American Federation of Government Employees, Local 1709, 57 F.L.R.A. no. 65, 304, 306 (2001).

(218) Id. at 306, 307.

(219) Dover AFB, 316 F.3d at 283.

(220) Id.

(221) See recommended EEOC action in section IX of this article.

(222) Dover AFB, 57 F.L.R.A. no. 65, 304, 306 (citing Chevron, 467 U.S. at 837).

(223) Id.

(224) It is assumed this mandate was delegated to the individual government agencies when the responsibility for investigating and processing individual claims of discrimination was delegated to them under [section] t 614.108(a).

(225) 42 U.S.C. [section] 2000e-5 (emphasis added).

(226) See supra notes 22-24 and accompanying text.

(227) See definition of "conciliation," supra note 23.

(228) BLACK'S LAW DICTIONARY 981 (6th ed. 1990).

(229) Chevron step one looks at a statute to see if it is "unambiguous." Since the Civil Rights Act unambiguously notes these methods are informal, a court should go no further and rule the methods to be informal.

(230) 16 F.3d 1526.

(231) Id. at 1532.

(232) Dover AFB, 316 F.3d at 286.

(233) 42 U.S.C. [section] 2000e-5 (2008).

(234) Id.

(235) Dover Air Force Base and American Federation of Government Employees, Local 1709, (Dover AFB and AFGE) 57 F.L.R.A. no. 65, 304, 306.

(236) 29 C.F.R. [section] 1614

(237) Dover AFB and AFGE, 57 F.L.R.A. no. 65 at 306.

(238) Id.

(239) 29 C.F.R. [section][section] 1614.102(b)(2), 1614.104(b), 1614.108(b) (2008).

(240) Chevron, 467 U.S. at 843.

(241) Dover AFB, 316 F.3d at 285.

(242) NTEU v. FLRA, 774 F. (2d 1181 1183 (D.C. Cir. 1985) (citing 5 U.S.C. [section] 7114(a)(2)(A)).

(243) Id. at 1184.

(244) 5 U.S.C. [section] 7103(a)(9)(A).

(245) The court's footnote quotes 5 U.S.C. [section] 7121 (d) as follows:
   An aggrieved employee affected by a prohibited personnel practice
   under section 2302 (b) (1) of this title which also falls under the
   coverage of the negotiated grievance procedure may raise the matter
   under a statutory procedure or the negotiated procedure, but not
   both .... Selection of the negotiated procedure in no manner
   prejudices the right of an aggrieved employee to request the Merit
   Systems Protection Board to review the final decision pursuant to
   section 7702 of this title in the case of any personnel action that
   could have been appealed to the Board, or, where applicable, to
   request the Equal Employment Opportunity Commission to review a
   final decision in any other matter involving a complaint of
   discrimination of the type prohibited by any law administered by
   the Equal Employment Opportunity Commission.


(246) Discussed in Exxon Corp. v. Hunt, 475 U.S. 355, 369 (1986); Kungys v. United States, 485 U.S. 759, 778 (1988); United States v. Alaska, 521 U.S. 1 (1997); Walters v. Metropolitan Educ. Ents., Inc., 519 U.S. 202 (1997); Rake v. Wade, 508 U.S. 464 (1993); Colautti v. Franklin, 439 U.S. 379, 392 (1979).

(247) P. ST. J. LANGAN, MAXWELL ON THE INTERPRETATION OF STATUTES, at 36 (1969).

(248) NTEU, 774 F. (2d at 1187.

(249) Id.

(250) Id.

(251) Id.

(252) BLACK'S LAW DICTIONARY 296 (1990); WEBSTER'S NEW COLLEGIATE DICTIONARY (Merriam-Webster Inc., 1986); Dictionary.com, Dictionary.com Unabridged (v 1.1). Random House, Inc., http://dictionary.reference.com/browse/aggrieved (last visited Jun. 7, 2007); Dictionary.com, THE AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE, Fourth Edition. (Houghton Mifflin Company 2004) http://dictionary.reference.com/browse/aggrieved (last visited Jun. 7, 2007); Dictionary.com, KERNERMAN ENGLISH MULTILINGUAL DICTIONARY. (K Dictionaries Ltd.) http://dictionary.reference.com/browse/aggrieved (last visited Jun. 7, 2007); Dictionary.com, MERRIAM-WEBSTER'S DICTIONARY OF LAW. (Merriam-Webster, Inc.) http://dictionary.reference.com/browse/aggrieved (last visited Jun. 7, 2007).

(253) 5 U.S.C. [section] 7121(b)(1)(C)(iii).

(254) Id.

(255) IRS Fresno, 16 F.3d at 1024-25.

(256) NTEU, 774 F.2d at 1187.

(257) Id. at 1189.

(258) 16 F.3d 1526 (9th Cir. 1994).

(259) Id. at 1534.

(260) Id. at 1534.

(261) Luke AFB, 1999 U.S. App. LEXIS 34569.

(262) The court incorrectly cites the ADRA as the "Alternative Dispute Resolution Act" at page 281 of the opinion, then refers to it as the "ADR Act" throughout the opinion.

(263) Dover AFB, 316 F.3d at 286.

(264) Id.

(265) 5 U.S.C. [section] 574(a) and (b).

(266) 510 U.S. 487 (1994) (quoting 503 U.S. 249, 253, 112 S.Ct. 1146, 1149, 117 L.Ed.2d 391 (1992)).

(267) 57 F.L.R.A. no. 65, 304, 306.

(268) 5 U.S.C. [section] 571 (10) ("'party' means--(A) for a proceeding with named parties, the same as in section 551(3) of this title;'"). 5 U.S.C. [section] 551 reads:
   Definitions: For the purpose of this subchapter--(2) 'person'
   includes an individual, partnership, corporation, association, or
   public or private organization other than an agency; (3) 'party'
   includes a person or agency named or admitted as a party, or
   properly seeking and entitled as of right to be admitted as a
   party, in an agency proceeding, and a person or agency admitted by
   an agency as a party for limited purposes;


(269) 5 U.S.C. [section] 7114(a)(2):
   An exclusive representative of an appropriate unit in an agency
   shall be given the opportunity to be represented at--(A) 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;


(270) Dover AFB, 316 F.3d at 284.

(271) 5 U.S.C. [section] 572(a): "An agency may use a dispute resolution proceeding for the resolution of an issue in controversy that relates to an administrative program, if the parties agree to such proceeding."

(272) 5 U.S.C. [section] 573(b): "A neutral who serves as a conciliator, facilitator, or mediator serves at the will of the parties."

(273) 5 U.S.C. [section] 574(a)(1) reads:
   Except as provided in subsections (d) and (e), a neutral in a
   dispute resolution proceeding shall not voluntarily disclose or
   through discovery or compulsory process be required to disclose any
   dispute resolution communication or any communication provided in
   confidence to the neutral, unless--1)all parties to the dispute
   resolution proceeding and the neutral consent in writing, and, if
   the dispute resolution communication was provided by a nonparty
   participant, that participant also consents in writing;


(274) 5 U.S.C. [section] 574(d)(1) reads:
   The parties may agree to alternative confidential procedures for
   disclosures by a neutral. Upon such agreement the parties shall
   inform the neutral before the commencement of the dispute
   resolution proceeding of any modifications to the provisions of
   subsection (a) that will govern the confidentiality of the dispute
   resolution proceeding. If the parties do not so inform the neutral,
   subsection (a) shall apply.


(275) Dover AFB, 316 F.3d at 284. For 5 U.S.C. [section] 574(a)(1), see supra note 216. 5 U.S.C. [section] 574(e) reads:
   If a demand for disclosure, by way of discovery request or other
   legal process, is made upon a neutral regarding a dispute
   resolution communication, the neutral shall make reasonable efforts
   to notify the parties and any affected nonparty participants of the
   demand. Any party or affected nonparty participant who receives
   such notice and within 15 calendar days does not offer to defend a
   refusal of the neutral to disclose the requested information shall
   have waived any objection to such disclosure.


(276) Dover AFB, 316 F.3d at 287, note 1. 5 U.S.C. [section] 572(c) reads: "Alternative means of dispute resolution authorized under this subchapter are voluntary procedures which supplement rather than limit other available agency dispute resolution techniques."

(277) EEO MD 110, supra note 9, Appendix H, EEOC ADR Policy Statement, at paragraph 7.II.B.3 ([T]he Commission will be guided by the nondisclosure provisions of the Civil Rights Act and the confidentiality provisions of ADRA which impose limitations on the disclosure of information.).

(278) Dover AFB, 316 F.3d at 286-87.

(279) 5 U.S.C 552(a).

(280) Id.

(281) 423 F.3d 512, (5th Cir. 2005), 517-518 (citing Orekoya v. Mooney, 330 F.3d 1 (1st Cir. 2003); Doe v. U.S. Postal Service, 317 F.3d 339 (D.C.Cir. 2003); Krieger v. Fadely, 211 F.3d 134 (D.C.Cir. 2000); Pippinger v. Rubin, 129 F.3d 519 (10th Cir. 1997); Henson v. NASA, 14 F.3d 1143 (6th Cir.1994); Kimberlin v. U.S. Dep't of Justice, 788 F.2d 434 (7th Cir.1986); Barrel v. Federal Aviation Administration, 725 F.2d 1403 (D.C.Cir. 1984); Doyle v. Behan, 670 F.2d 535 (5th Cir. 1982); Stokes v. Comm'r of Soc. Sec. Admin., 292 F.Supp. (2d 178 (D.Me. 2003); Sullivan v. U.S. Postal Serv., 944 F.Supp. 191 (W.D.N.Y.1996); Romero-Vargas v. Shalala, 907 F.Supp. 1128 (N.D.Ohio 1995); Brooks v. Veterans Administration, 773 F.Supp. 1483 (D.Kan. 1991); Savarese v. U.S. Dep't of Health, Educ., & Welfare, 479 F.Supp. 304 (N.D.Ga. 1979)) (all involving the oral disclosure of information).

(282) 53 F.L.R.A. 925 (1997).

(283) The court stated: "The leading case articulating this 'actual retrieval' standard is Savarese v. United States Department of Health, Education, and Welfare, (283) where the court held that for disclosure to be covered by 5 U.S.C. [section] 552(a)(b) 'there must have initially been a retrieval from the system of records which was at some point a source of the information.'"

(284) Bartel v. Federal Aviation Administration, 725 F.2d 1403 (D.C. Cir. 1984). In Bartel, the court Referred to Wilborn v. Department of Health and Human Services, 49 F.3d 597, 601 (9th Cir 1995), which held that "'independent knowledge,' gained by the creation of records, cannot be used to sidestep the Privacy Act."

(285) GSA II, 53 F.L.R.A. at 934.

(286) Id. at 935.

(287) GSA II, 53 F.L.R.A. at 934 (citing Wilborn).

(288) Id.

(289) United States Department of the Air Force, Luke Air Force Base, Arizona 58 F.L.R.A. 528 (2003).

(290) United States Department of Agriculture, Forest Service, Los Padres National Forest, Goleta, Calif., 60 F.L.R.A. 644 (2005).

(291) Id, at 653.

(292) GSA II, 53 F.L.R.A. at 934 (citing Wilborn).

(293) 5 U.S.C 552(a) (2008).

(294) DOD v. FLRA, 510 U.S. at 503.

(295) Department of the Air Force, Davis-Monthan Air Force Base and American Federation of Government Employees, AFL-CIO, Local 2924, Case No. DE-CA-07-0377 (Jun. 13, 2008).

(296) Discussion of this case is limited due to the ongoing nature of the litigation.

(297) Dover AFB, 316 F.3d at 286.

Major Timothy J. Tuttle (B.A. University of Kansas, (1990); J.D. University of Nebraska College of Law (1999); LL.M George Washington University (2007)) serves as Chief Administrative Litigation Branch-East, Labor Law Field Support Center, Air Force Legal Operations Agency in Rosslyn, Virginia. He is a member of the Nebraska Bar.
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Date:Dec 22, 2008
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