EEO Settlements, Privacy and Unions

Does a union have the right to attend a settlement meeting between an employee in a bargaining unit and an EEO manager?

Federal employees file thousands of EEO complaints. If a federal employee who is in a bargaining unit files an EEO complaint and has a settlement meeting with the agency to resolve the complaint, is the agency required to invite the union to attend the meeting? Does it make a difference if the employee does not want the union to attend?

Not knowing the answer can result in even more litigation.

Unfortunately, the answer is not a simple one as the hundreds of cases on issues like this often result in adding complexity but little clarity.

The Civil Service Reform Act of 1978 uses the term “formal discussion.” The law requires that a union can attend a meeting in an agency when the meeting is a “formal discussion.”

The executive order that preceded the labor relations statute had a similar provision.

In effect, the term “formal discussion” has been in use in the federal labor relations program since the early 1970’s. A quick search of the Federal Labor Relations site shows the term pops up a few hundred times and that doesn’t count the number of decisions issued under the auspices of the executive order that preceded the labor relations statute.

Nevertheless, meaning and application of this short phrase are still being litigated. This case may also illustrate why the Department of Homeland Security and the Department of Defense want to seriously restrict the right of unions to attend meetings betweeen managers and employees as litigating these issues can–and often does–take years and untold amounts of time and money.

In one of the latest cases, an employee of the Veterans Administration in Prescott, Arizona filed an EEO complaint. The agency received a settlement offer from the employee, the EEO manager wrote up the proposed settlement and asked the employee to come in to review the document. When the employee arrived at the meeting, the EEO manager told the employee the union had a right to attend the meeting but the employee did not want the union present.

The employee’s argument was that he “distrusted the [union] based on prior dealings.” As a result, the union was not notified of the meeting and did not attend it. The employee signed an agreement settling the EEO complaint.

The union then filed an unfair labor practice contending that the agency violated the labor relations statute by not inviting the union to attend the settlement meeting.

The FLRA dismissed the case concluding that the meeting was not a “formal discussion” and there was therefore no obligation to invite the union to attend the meeting. Citing factors such as the short length of the meeting, that the meeting was voluntary for the employee, no notes were kept and there was no formal agenda, the case against the agency was dismissed.

Does this mean that any time a settlement agreement is being discussed between an employee and an agency representative that the union does not have the right to attend?

Unfortunately for the manager who has to make this decision, the answer is “no” because there are cases in which the union has the right to attend.

The FLRA looked at a narrow range of issues in this case. Moreover, the fact that the employee did not want the union to attend probably created a situation which will not be applicable in many similar situations.

You can read the entire case decision and try to apply this decision to other situations. When doing so, be sure to read the portion of the decision that lists the criteria to be used in deciding when the union has a right to attend a meeting.

Department of Veterans Affairs, Prescott, AZ and AFGE Local 2401 (August 29, 2005), 61 FLRA No. 36


About the Author

Ralph Smith has several decades of experience working with federal human resources issues. He has written extensively on a full range of human resources topics in books and newsletters and is a co-founder of two companies and several newsletters on federal human resources. Follow Ralph on Twitter: @RalphSmith47