Nos. 98-71173 & 98-71347 IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT _______________________________ LUKE AIR FORCE BASE, ARIZONA, Petitioner/Cross-Respondent v. FEDERAL LABOR RELATIONS AUTHORITY, Respondent/Cross-Petitioner and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1547, Intervenor _______________________________ ON PETITION FOR REVIEW AND CROSS-APPLICATION FOR ENFORCEMENT OF A DECISION AND ORDER OF THE FEDERAL LABOR RELATIONS AUTHORITY RESPONDENT'S PETITION FOR REHEARING AND SUGGESTION FOR REHEARING EN BANC DAVID M. SMITH Solicitor WILLIAM R. TOBEY Deputy Solicitor JAMES F. BLANDFORD Attorney Federal Labor Relations Authority 607 14th Street, N.W. Washington, D.C. 20424 (202) 482-6620 TABLE OF CONTENTS INTRODUCTION AND STATEMENT OF COUNSEL 1 PRELIMINARY STATEMENT 3 A. The Facts 3 B. Proceedings Before the Authority 4 C. The Court's Decision 5 ARGUMENT 5 A. The Panel's Interpretation of Section 7114(a)(2)(A) Is Inconsistent with the Express Terms of the Statute 5 B. Rehearing, En Banc, Is Warranted Because the Panel's Decision Conflicts with Another Decision of this Court 9 C. Rehearing, En Banc, Is Warranted Because the Panel's Decision Substantially Affects a Rule of National Application in Which There Is an Overriding Need for National Uniformity, and Is Inconsistent with Decisions of the United States Courts of Appeals for the District of Columbia and Tenth Circuits 11 1. The panel's decision in this case substantially affects a rule of national application in which there is an overriding need for national uniformity 11 2. The panel's decision conflicts with decisions of the D.C. and Tenth Circuits 12 a. NTEU 12 b. VA, Denver 14 CONCLUSION 15 ADDENDUM Ninth Circuit Memorandum Decision granting the Petition for Review in Luke Air Force Base v. FLRA, Nos. 98-71173 and 98-71347 (9th Cir. December 30, 1999) TABLE OF AUTHORITIES FEDERAL CASES Department of Veterans Affairs, Denver, Colo. v. FLRA, 3 F.3d 1386 (10th Cir. 1993) 3, 14 Department of Veterans Affairs Med. Ctr., Long Beach, Cal. v. FLRA, 16 F.3d 1526 (9th Cir. 1994) 3, 9, 10 Garner v. Teamsters Local Union No. 776, 346 U.S. 485 (1953) 11 I.R.S., Fresno Serv. Ctr. v. FLRA, 706 F.2d 1019 (9th Cir. 1983) passim NLRB v. A-Plus Roofing, Inc., 39 F.3d 1410 (9th Cir. 1994) 9 NTEU v. FLRA, 774 F.2d 1181 (D.C. Cir. 1985) passim In Re Yochum, 89 F.3d 661 (9th Cir. 1996) 6 DECISIONS OF THE FEDERAL LABOR RELATIONS AUTHORITY General Serv. Admin., Region 9 and American Fed'n of Gov't Employees, Council 236, 48 FLRA 1348 (1994) 4 U.S. Dep't of Justice, Bureau of Prisons, Fed. Correctional Inst. (Ray Brook, New York), 29 FLRA 584 (1987) 15 FEDERAL STATUTES Federal Service Labor-Management Relations Statute, 5 U.S.C. §§ 7101-7135 (1994 & Supp. III 1997) 2 5 U.S.C. § 7103 (a) (9) 6, 7 5 U.S.C. § 7114 (a) (2) (A) passim 5 U.S.C. § 7121 2, 7, 13 5 U.S.C. § 7121 (a) 8, 9 5 U.S.C. § 7121 (d) 7, 8, 10 5 U.S.C. § 7121 (e) 7, 8, 10 LEGISLATIVE HISTORY H.R. Rep. No. 95-1403 (1978) 13 IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Nos. 98-71173 & 98-71347 _______________________________ LUKE AIR FORCE BASE, ARIZONA, Petitioner/Cross-Respondent v. FEDERAL LABOR RELATIONS AUTHORITY, Respondent/Cross-Petitioner and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1547, Intervenor _______________________________ ON PETITION FOR REVIEW AND CROSS-APPLICATION FOR ENFORCEMENT OF A DECISION AND ORDER OF THE FEDERAL LABOR RELATIONS AUTHORITY RESPONDENT'S PETITION FOR REHEARING AND SUGGESTION FOR REHEARING EN BANC INTRODUCTION AND STATEMENT OF COUNSEL The panel resolved this case by disagreeing with the Authority over how to construe the statute that the Authority administers. The question was whether a meeting between representatives of Luke Air Force Base, Arizona (Luke AFB) and an employee represented by the American Federation of Government Employees, Local 1547 ("Local 1547" or "union") regarding the employee's formal discrimination complaint concerned a "grievance" within the meaning of section 7114(a)(2)(A) of the Federal Service Labor-Management Relations Statute, 5 U.S.C. §§ 7101-7135 (1994 & Supp. III 1997) (Statute).[1] The panel (Circuit Judges O'Scannlain, Hawkins, and Senior Circuit Judge Wiggins) held, in a memorandum decision (attached), that the meeting did not concern a "grievance" because the employee's complaint was brought pursuant to Equal Employment Opportunity Commission (EEOC) procedures and because such matters are excluded from the parties' negotiated grievance procedure (NGP).[2] Memorandum (Mem.) at 4, citing I.R.S., Fresno Serv. Ctr. v. FLRA, 706 F.2d 1019, 1024 (9th Cir. 1983) (IRS, Fresno). In counsel's judgment, rehearing is warranted because the panel's interpretation of the relevant statutory provisions is inconsistent with the express terms of the Statute. Further, respondent seeks rehearing with suggestion of rehearing en banc because the panel's decision conflicts with another decision of this Court.[3] See Fed. R. App. P. 35(a). Additionally, the panel's decision substantially affects a rule of national application in which there is an overriding need for national uniformity and is inconsistent with decisions of the United States Courts of Appeals for the D.C. and Tenth Circuits.[4] See Fed. R. App. P. 35(b); see also 9th Cir. R. 35(b). PRELIMINARY STATEMENT A. The Facts The facts are not in dispute. As relevant here, on January 19, 1995, representatives of Luke AFB met with Tillie Cano, a bargaining unit employee, to discuss settlement of her formal discrimination complaints filed pursuant to EEOC procedures. The complainant had named the union president as her representative, and he had attended a meeting between the complainant and agency representatives the previous day. However, the union president was never told of the January 19 meeting, and it was conducted without him. At this meeting, the complainant was presented with a proposed settlement and, after some negotiations between the complainant and representatives of the agency, a settlement was executed. B. Proceedings Before the Authority Subsequently, Local 1547 filed an unfair labor practice (ULP) charge alleging that Luke AFB violated section 7114(a)(2)(A) by not affording the union the opportunity to be present at the January 19 meeting.[5] The General Counsel issued a complaint and the case was tried before an Administrative Law Judge (ALJ) who found that Luke AFB committed ULPs as alleged. After considering Luke AFB's exceptions to the ALJ's decision, the Authority adopted the decision. The Authority held that the January 19 meeting satisfied the elements of a formal discussion and that Luke AFB failed to provide the union with the opportunity to attend.[6] As relevant here, the Authority held, in agreement with the ALJ, that the meeting concerned a "grievance" within the meaning of section 7114(a)(2)(A). C. The Court's Decision Luke AFB petitioned this Court for review of the Authority's decision, contending only that the meeting did not concern a "grievance."[7] As noted above, a panel of this Court granted Luke AFB's petition for review, finding that the meeting did not concern a "grievance" within the scope of the relevant provisions of the Statute administered by the Authority. The memorandum decision contained no statutory analysis, but rather relied on the Court's earlier decision in IRS, Fresno. ARGUMENT A. The Panel's Interpretation of Section 7114(a)(2)(A) Is Inconsistent with the Express Terms of the Statute In the instant case, the panel relied on this Court's prior decision in IRS, Fresno and found that complaints brought pursuant to EEOC procedures are not "grievances" within the meaning of section 7114(a)(2)(A). Mem. at 4. In IRS, Fresno, this Court held that a "grievance," for the purposes of section 7114(a)(2)(A), does not encompass complaints brought pursuant to EEOC procedures, because EEOC procedures are "unrelated to and separate from the contractual grievance process." IRS, Fresno, 706 F.2d at 1024. As demonstrated below, this excessively narrow interpretation of the Statute's definition of "grievance" is inconsistent with the express terms of the Statute. Section 7114(a)(2)(A) of the Statute broadly provides for union attendance at meetings concerning "any grievance." To ascertain the scope of the term "grievance" in section 7114(a)(2)(A), the first place to look is the Statute's express definition of "grievance." See In Re Yochum, 89 F.3d 661, 666 (9th Cir. 1996) ("[I]n statutes that contain statutory definition sections, it is commonly understood that such definitions establish meaning wherever the terms appear in the same Act."). The Statute's definition of "grievance" does not contain the severe limitations read into the term "grievance" by the panel. Section 7103 is the Statute's definition section. Section 7103(a)(9) provides in relevant part that: 'grievance' means any complaint- (A) by any employee concerning any matter relating to the employment of the employee[.] (Emphasis added). It is clear that the express language of section 7103(a)(9) does not provide any basis for limiting the definition of "grievance," as the panel did, to "grievances" falling within the scope of an NGP. To the contrary, the Statute defines "grievance" in the most generic terms. A "grievance" is, explicitly, any employment-related complaint, with Congress's repeated use of the modifier "any" underscoring its intent that the definition should extend to the entire range of matters that would otherwise fall within its coverage. Ms. Cano's complaint that she was the victim of illegal discrimination by her employing agency was undeniably a "complaint by [an] employee concerning [a] matter relating to [her employment]," i.e., a "grievance" under the Statute's definition. The use of the term "grievance" and its derivatives in the Statute's section providing for the grievance procedure, section 7121, is consistent with section 7103(a)(9)'s broad definition, and indicates specifically that a "grievance" includes statutory appeals. First, subsections 7121(d) and (e) provide that "aggrieved employees" affected by illegal discrimination within the jurisdiction of the EEOC, or subject to conduct or performance-based adverse actions within the jurisdiction of the Merit Systems Protection Board (MSPB), may raise these matters under either a statutory procedure or an NGP, but not both. 5 U.S.C. § 7121(d), (e). As the D.C. Circuit held with regard to these subsections: [I]f the term "grievance" referred only to disputes pursued through [NGPs], § 7121(d) and (e) would not be worded to require an "aggrieved employee" (emphasis supplied) to elect to pursue a remedy under either a negotiated procedure or a statutory procedure. An "aggrieved employee" - i.e., one with a grievance - would by definition necessarily pursue his grievance under a negotiated procedure. NTEU, 774 F.2d at 1187. Second, section 7121(a)'s reference to subsections 7121(d) and (e) in discussing the scope and exclusivity of NGPs also indicates that a "grievance" includes statutory appeals. Section 7121(a) provides that any collective bargaining agreement shall include procedures for the "settlement of grievances." These procedures, however, are not entirely exclusive. Section 7121(a) provides in this regard that an NGP's procedures "shall be the exclusive administrative procedures for resolving grievances which fall within [the NGP's] coverage," "[e]xcept as provided in subsections (d) [and] (e) . . . of this section" (emphasis added). Thus, "the statutory procedures referred to in § 7121(d) and (e) are also procedures for resolving grievances." NTEU, 774 F.2d at 1187-88. Finally, the fact that EEO matters were excluded from the scope of the parties' NGP in this case does not limit the meaning of the term "grievance." Section 7121(a)'s use of the phrase "grievances which fall within [an NGP's] coverage" necessarily means that there may be "grievances" that are outside the NGP's coverage. Any other interpretation would render the phrase meaningless. See NLRB v. A-Plus Roofing, Inc., 39 F.3d 1410, 1415 (9th Cir. 1994) (citations omitted) (In construing a statute, the court is "obliged to give effect, if possible, to every word Congress used."). In sum, the Statute provides a broad definition of "grievance" that includes statutory appeals matters that may or may not also be processed through NGPs. Because the statutory definition controls the term's use in section 7114(a)(2)(A), a meeting concerning a statutory appeal, such as the formal EEO complaint in this case, constitutes a formal discussion within the scope of that section. The panel's conclusion to the contrary constitutes grounds for granting the Authority's petition for rehearing. B. Rehearing, En Banc, Is Warranted Because the Panel's Decision Conflicts with Another Decision of this Court The panel's decision also conflicts with this Circuit's VA, Long Beach decision. In VA, Long Beach, this Court held that interviews with bargaining unit employee witnesses conducted by a representative of an employer agency in connection with a statutory appeal to the MSPB were formal discussions concerning a "grievance" within the scope of section 7114(a)(2)(A). 16 F.3d at 1536. The Court held that the Authority's broad reading of the term grievance "as encompassing statutory appeals" was "in conformance with the language of the Statute." Id. at 1533. Although the VA, Long Beach Court distinguished IRS, Fresno on its facts, the Court recognized that IRS, Fresno was wrongly decided: "[T]he reasoning of the District of Columbia Circuit in [NTEU], rejecting the IRS, Fresno analysis, is more persuasive." 16 F.3d at 1534 n.4. NTEU is discussed below at section C.2.a. With respect to the applicability of section 7114(a)(2)(A), there is no meaningful difference between VA, Long Beach and the instant case. Both involve employee complaints pursued through alternative statutory procedures rather than through the parties' NGP, and in both cases the procedures were governed by a regulatory scheme separate and distinct from the Statute. The holding of the Court in VA, Long Beach - that the term "grievance" encompasses statutory appeals - is wholly applicable to the instant case. The Court in VA, Long Beach recognized that section 7121(e) of the Statute permitted the employee's "grievance" in that case to be filed through the NGP or through the statutory procedure. Section 7121(d) authorizes the same choice with respect to formal discrimination complaints, such as the complaint at issue in the instant case. That the complaint in the instant case was, coincidentally, excluded from the NGP is of no consequence. [8] See NTEU, 774 F.2d at 1185 n. 5 (treating as irrelevant whether parties had excluded the matter at issue there from the NGP).[9] C. Rehearing, En Banc, Is Warranted Because the Panel's Decision Substantially Affects a Rule of National Application in Which There Is an Overriding Need for National Uniformity, and Is Inconsistent with Decisions of the United States Courts of Appeals for the District of Columbia and Tenth Circuits 1. The panel's decision in this case substantially affects a rule of national application in which there is an overriding need for national uniformity There is an overriding need for national uniformity in construing a federal law that regulates federal sector labor-management relations. The Supreme Court has recognized that Congress, in regulating private sector labor- management relations, intended that there be uniform application of statutory rules and procedures. See Garner v. Teamsters Local Union No. 776, 346 U.S. 485, 490 (1953). This rule applies with equal or greater force in the federal sector where bargaining units are frequently nationwide. The rights and obligations of federal employer agencies and the unions that represent their employees should not vary depending upon the circuit court of appeals with jurisdiction over their operations.[10] 2. The panel's decision conflicts with decisions of the D.C. and Tenth Circuits a. NTEU As indicated previously, the panel's determination was based exclusively on the Court's IRS Fresno decision. Expressly disagreeing with IRS, Fresno's conclusion that "the term 'grievance' . . . include[s] only disputes governed by a negotiated grievance procedure," NTEU, 774 F.2d at 1188, the D.C. Circuit found that a meeting concerning a statutory appeal to the MSPB concerned a grievance within the meaning of section 7114(a)(2). See NTEU, 774 F.2d at 1188. The court's extensive statutory analysis began with the Statute's broad definition of "grievance," noting that nothing in that definition restricts a "grievance" to matters raised through an NGP. Id. at 1186. Further, the court found the broad interpretation of the term consistent with its use in section 7121 of the Statute. Id. at 1186-88; see also discussion above in section A. In addition to the Statute's express terms, the D.C. Circuit also found support for its conclusion in the Statute's legislative history. Commenting on what was to become the definition of "grievance," the House Report stated that "[i]t should be noted that, although this subsection is virtually all- inclusive in defining 'grievance,' section 7121 excludes certain grievances from being processed under a negotiated grievance procedure, thereby limiting the net effect of the term." H.R. Rep. No. 95-1403, at 40 (1978). The court found that "[t]he only plausible reading of the sentence . . . is that § 7121 ensures that some grievances cannot be processed under [an NGP]." NTEU, 774 F.2d at 1188. By recognizing that some grievances are excluded from the NGP, the passage establishes that the term "grievance" should not be limited to matters covered by an NGP. Finally, the D.C. Circuit rejected this Court's finding in IRS, Fresno that a union has no cognizable interest in disputes pursued under statutory procedures. Although recognizing that a union's institutional role with respect to statutory appeal rights is more restricted than its role in an NGP, the court noted that a union has an interest in the fair treatment of unit members and any allegation of unfair treatment triggers that interest. See NTEU, 774 F.2d at 1188. Further, resolution of individual complaints may well have effects on other employees. For example, there may be a direct effect if a remedy for one employee will result in decreased opportunities for others. Id. Lastly, determinations with respect to what constitutes an unjust employment action in one case may affect the rights and expectations of other employees in similar circumstances. Id. As the D.C. Circuit stated, these effects are present whether the aggrieved employee pursues the matter through the NGP or through an alternative statutory procedure. Id. b. VA, Denver "[G]reatly persuaded by the reasoning of [NTEU]," the Tenth Circuit also held that the term "grievance" as used in section 7114(a)(2)(A) encompasses statutory appeals as well as matters pursued through an NGP. VA, Denver, 3 F.3d at 1390-91. As in NTEU, the discussion at issue in VA, Denver concerned an employee's appeal to the MSPB. Adopting the reasoning of the D.C. Circuit, the court held that limiting the reach of "grievance" to the NGP "is too narrow a reading of [section] 7114(a)(2)(A)." Id. at 1391. In summary, two courts of appeals and another panel of this Court have rejected the analysis that served as the basis of the panel's decision in the instant case.[11] As demonstrated above, the conclusion of IRS, Fresno, that the term "grievance" as used in section 7114(a)(2)(A) excludes matters processed under statutory appeals procedures, is inconsistent with the terms of the Statute. Rehearing, en banc, is necessary so that this Court may reconsider its decision in that case. CONCLUSION The panel's decision should be accepted for rehearing by the entire Court. Respectfully submitted. DAVID M. SMITH Solicitor WILLIAM R. TOBEY Deputy Solicitor JAMES F. BLANDFORD Attorney FEDERAL LABOR RELATIONS AUTHORITY 607 14th Street, N.W. Washington, D.C. 20424 (202) 482-6620 February 10, 2000 CERTIFICATION PURSUANT TO FRAP RULE 32 AND CIRCUIT RULE 28 Pursuant to Federal Rule of Appellate Procedure 32 and Circuit Rule 32(e)4), I certify that the attached brief is proportionately spaced, utilizes 14- point serif type, and contains 3302 words. February 10, 2000 ___________________________ William R. Tobey IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT _______________________________ LUKE AIR FORCE BASE, ARIZONA, Petitioner/Cross-Respondent v. FEDERAL LABOR RELATIONS AUTHORITY, Nos. 98-71173 Respondent/Cross-Petitioner & 98-71347 and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1547, Intervenor _______________________________ CERTIFICATE OF SERVICE I certify that copies of the Respondent's Petition for Rehearing and Suggestion for Rehearing En Banc have been served this day, by first-class mail, upon the following: William Kanter, Esq. Kevin M. Grile Sandra Wien Simon, Esq. Assistant General Counsel Appellate Staff American Federation of Civil Division, Room 9102 Government Employees, Department of Justice AFL-CIO 601 D Street, N.W. 449 North Clark St., Room 300 Washington, D.C. 20530 Chicago, IL 60610 _________________________ Jennifer A. Baker Paralegal Specialist February 10, 2000 [1] Local 1547 is the certified bargaining representative of a unit of employees at Luke AFB. [2] Section 7121 of the Statute requires that employer agencies and unions include in their collective bargaining agreements "procedures for the settlement of grievances." [3] Department of Veterans Affairs Med. Ctr., Long Beach, Cal. v. FLRA, 16 F.3d 1526, 1529 (9th Cir. 1994) (VA, Long Beach). Although argued in brief, the panel's memorandum did not address the apparent conflict with VA, Long Beach. [4] NTEU v. FLRA, 774 F.2d 1181 (D.C. Cir. 1985) (NTEU); Department of Veterans Affairs, Denver, Colo. v. FLRA, 3 F.3d 1386 (10th Cir. 1993) (VA, Denver). [5] Section 7114(a)(2)(A) provides that a union must 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[.] (Emphasis added). [6] Under well-established Authority precedent, a union's right to representation under section 7114(a)(2)(A) requires the existence of: (1) a discussion; (2) which is formal; (3) between one or more representatives of the agency and one or more unit employees or their representatives; (4) concerning any grievance or any personnel policy or practice or other general condition of employment. See Mem. at 3-4, citing General Serv. Admin., Region 9 and American Fed'n of Gov't Employees, Council 236, 48 FLRA 1348, 1354 (1994). [7] Luke AFB did not contest that the other elements of a formal discussion were satisfied nor that it failed to provide the union with an opportunity to be represented. [8] There is no basis to conclude that by excluding discrimination complaints from the NGP, the union was intending to waive its statutory rights under section 7114(a)(2)(A). Indeed, it may have been willing to exclude the matter from the NGP in reliance on section 7114(a)(2)(A) to protect its institutional interests. [9] Also, at the time the ULP was committed in VA, Long Beach, the employee could not have pursued his complaint through the NGP, having opted to use the MSPB statutory procedure instead. [10] The significance of the issue, and the fact that the panel's decision establishes a rule of general applicability going substantially beyond the particular facts of this case, is recognized by Luke AFB. Luke AFB has requested publication of the panel decision stating that "[u]nion representation at government EEO mediation sessions is a recurring issue of substantial public importance that is of interest to all components of the Federal Government." Luke AFB Request to Publish, January 10, 2000. [11] It is irrelevant that the discussion at issue in IRS, Fresno involved discrimination complaints under the auspices of the EEOC and those at issue in the other cases involved MSPB appeals. Both statutory procedures are separate from any particular NGP, and thus the fact that a particular case involves either EEOC or MSPB procedures is not a basis for applying the Statute's formal discussion rights differently. Moreover, the Court's decision in IRS, Fresno did not turn on any matter unique to EEO complaints. To the extent specific employee rights under EEOC proceedings might conflict with the union's rights under section 7114(a)(2)(A) of the Statute, the Authority has noted that it will take such conflicts into consideration. See U.S. Dep't of Justice, Bureau of Prisons, Fed. Correctional Inst. (Ray Brook, New York), 29 FLRA 584, 590 (1987). Although Luke AFB raised the specter of employee/union conflicts, we note that no such conflicts were present in this case.