This case concerns whether discussions, formal in nature, between an agency EEO investigator and bargaining unit employees being interviewed as part of those investigations, are formal discussions under section 7114(a)(2)(A) of the Statute. The Union sent a letter to the Activity designating a representative to be present during all phases of the EEO complaint process when bargaining unit employees were being interviewed by Agency representatives, including Office of Complaint Investigations (OCI). Thereafter, an OCI investigator met individually with six unit employees, and neither gave the Union notice of the meetings, nor an opportunity to attend.

The General Counsel applied Luke Air Force Base, Arizona, 54 FLRA No. 75, 54 FLRA 716, 732-33 (1998), reversed sub. nom. Luke Air Force Base, Arizona v. FLRA, (No. 98-71173 Dec. 30, 1999), wherein the Authority reaffirmed its position that a grievance within the meaning of section 7114(a)(2)(A) can encompass a statutory appeal, and held that a mediation/investigation session to resolve formal EEO complaints is a statutory formal discussion where an exclusive representative has the right to be represented and to actively participate. Based on the characteristics of the meetings, the General Counsel initially concluded that the requisite formality element under section 7114(a)(2)(A) had been met. In this regard, the employees were required to attend; the meetings lasted 10 to 30 minutes in a building separate from the employees' work area; the employees' received two to four days notice of the individual meetings; and the employees provided written statements. Second, relying on his January 26, 1999 "Guidance on Applying the Requirements of the Federal Service Labor-Management Relations Statute to Processing Equal Employment Opportunity Complaints and Bargaining over Equal Employment Opportunity Matters," in which relevant Authority precedent was reviewed, the General Counsel concluded that the OCI investigator was a representative of the Agency for section 7114(a)(2)(A) purposes.

The General Counsel thus concluded that the discussions in this case, which were about a formal EEO complaint, are grievances for section 7114(a)(2)(A) purposes. Applying Luke, the General Counsel found that there was no legal basis upon which to conclude that the interviews did not concern grievances. Accordingly, absent settlement, the Region was advised to issue complaint.

FLRA v. National Aeronautics and Space Administration, Washington, D.C. and NASA, Office of the Inspector General, 120 F.3d 1208 (11th Cir. 1997), reviewing 50 FLRA 601 (1995). The Eleventh Circuit enforced the Authority's decision that the agency had committed a ULP by preventing the exclusive representative from actively participating in an investigatory examination of a bargaining unit employee. In so holding, the court agreed with the Third Circuit in Defense Criminal Investigative Service v. FLRA, 855 F.2d 93 (3d Cir. 1988), that an Inspector General investigator is a "representative of the agency" within the meaning of section 7114(a)(2)(B) of the Statute, and must respect Weingarten rights when conducting employee interviews.

In Luke Air Force Base, Arizona and American Federation of Government Employees, Local 1547, 54 FLRA 716 (1998), the Authority found that the respondent committed an unfair labor practice under section 7116(a)(1) and (8) of the Statute by holding a formal discussion with a bargaining unit employee, without affording the Union adequate notice and an opportunity to be represented. The Authority concluded that a mediation/investigation session, which was arranged by the respondent to discuss an employee’s formal Equal Employment Opportunity complaints, was a formal discussion of a grievance that the Union should have been permitted to attend. In reaching this conclusion, the Authority expressly overruled Social Security Administration and Social Security Administration, Field Operations, New York Region, 16 FLRA 1021 (1984), to the extent it implies that a facilitated discussion in general, or a mediated negotiation in particular, can never be "formal" under section 7114(a)(2)(A) of the Statute. The Authority explained that a union’s statutory right to notice and an opportunity to be present during a discussion is not diminished when the discussion between employees and agency representatives is conducted in a nonconfrontational manner through a neutral third party. The Authority further stated that it would continue to look at the totality of the circumstances in determining whether a discussion is formal.

In addition, the Authority determined that the respondent failed to establish that the presence of a Union representative at the mediation/investigation session would conflict with Equal Employment Opportunity Commission regulations such as 29 C.F.R. Part 1614, or the Federal Sector Complaints Processing Manual, EEO Management Directive 110. The Authority similarly determined that the presence of the Union representative at the session would not conflict with the confidentiality provision in the Alternative Dispute Resolution Act (5 U.S.C. § 574).

In U.S. Department of Justice, Federal Bureau of Prisons, Office of Internal Affairs, Washington, D.C., 55 FLRA No. 64 (1999) (Member Cabaniss dissenting), the Authority reviewed a Judge's decision that the Agency failed to comply with section 7114(a)(2)(B) of the Statute by denying employees' requests to have a Union representative present during examinations in connection with an investigation. The Statute requires that employees be allowed such representation when they reasonably believe that the examinations may result in disciplinary action and if they request such representation.

There were no exceptions to the Judge's finding that the Respondent violated section 7116(a)(1) and (8) of the Statute by failing to comply with the requests of certain employees. However, the Union filed exceptions to the Judge's dismissal of allegations as to another employee whom the Judge found had not made a valid request. The Authority stated that the adequacy of a request for representation depends on the facts of each case, and that such a request need not be made in any specific form. Although the employee did not specifically request "union" representation, he asked for an attorney, and then said, "I want somebody to talk to." The Authority found that by not granting the request, and proceeding with the examination, the denial was "preemptive" and effectively foreclosed further discussion to clarify whether the employee wanted a union representative. Accordingly, the Authority granted the Union's exceptions and modified the Judge's order. Contrary to the Judge, the Authority also found, based on all the circumstances, that the appropriate scope for posting the notice was nationwide.

National Aeronautics & Space Admin., Washington, D.C., & National Aeronautics & Space Admin., Office of the Inspector General v. FLRA & AFGE, AFL-CIO, 119 S. Ct. 1979 (1999), affirming 120 F.3d 1208 (11th Cir. 1997). The Supreme Court affirmed the Authority's and the Eleventh Circuit's decisions that an Office of the Inspector General (OIG) investigator is a "representative of the agency" when examining a bargaining unit employee who reasonably fears that discipline might result from the examination. Relying on the language of the Statute and the Authority's interpretation in 50 FLRA 601 (1995), the Court rejected NASA's argument that "representative" is limited to the entity that collectively bargains with the union. The Court also held that the Authority's decision is consistent with the Inspector General Act, which provides that an agency's OIG investigators are "employed by, act on behalf of, and operate for the benefit of" that agency.