National Labor Relations Board Union, National Labor Relations Board Professional Association (Unions) and National Labor Relations Board (Agency)

[ v62 p397 ]

62 FLRA No. 76

NATIONAL LABOR
RELATIONS BOARD UNION
NATIONAL LABOR RELATIONS
BOARD PROFESSIONAL ASSOCIATION
(Unions)

and

NATIONAL LABOR RELATIONS BOARD
(Agency)

0-NG-2812

_____

DECISION AND ORDER
ON NEGOTIABILITY ISSUES

May 8, 2008

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope, Member

I.      Statement of the Case

      This case is before the Authority on a negotiability appeal filed by the National Labor Relations Board Union and the National Labor Relations Board Professional Association (the Unions) under § 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). The case concerns the negotiability of five proposals addressing the process that the Agency's Office of Equal Employment Opportunity (OEEO) will follow when investigating employees' formal equal employment opportunity (EEO) complaints. [n1] 

      After the petition for review was filed, the Agency filed a motion to dismiss the petition, and the Unions filed an opposition thereto. [n2]  The Agency also filed a statement of position (SOP), to which the Unions filed an untimely response. [n3]  The Agency filed a reply to the Unions' response.

      For the reasons set forth below, we find that all of the proposals are outside the duty to bargain. Accordingly, we dismiss the petition for review.

II.     Preliminary Matter

      Under 5 C.F.R. § 2429.21(b), documents filed by either "personal or commercial delivery" are "considered filed on the date they are received by the Authority." The Unions' response to the Agency's SOP was due on April 11, 2005. The Unions filed their response by commercial delivery (FedEx) and the Authority did not receive it until April 12, 2005. Accordingly, the Authority's CCO issued an Order to Show Cause why the Unions' response should not be dismissed as having been untimely filed. See April 14, 2005 Order. In their response, the Unions did not dispute that their filing was untimely under § 2429.21(b). On this basis, CCO, on behalf of the Authority, issued an Order finding that the Unions had failed to show the existence of extraordinary circumstances warranting a waiver of the expired time limits and stating that the Unions' response would not be considered. See April 29, 2005 Order.

      The Unions now request reconsideration of the Authority's Order, contending that extraordinary circumstances exist to warrant reconsideration and reversal of the Order. In support of their request, the Unions "implore the Authority to consider the difficulty with serving Federal agencies by mail that [the Unions' counsel] has experienced, and the [counsel's] intent in seeking timely service upon the Authority." Unions' Request for Reconsideration at 1. The Unions also note that other agencies and the federal courts consider that a pleading deposited with an overnight commercial delivery service is deemed served on the date it is deposited with the delivery service. In addition, the Unions argue that the late filing should be excused because that mistake did not cause prejudice to any party.

      [ v62 p398 ] Section 2429.17 of the Authority's Regulations permits a party who can establish extraordinary circumstances to request reconsideration of a final order of the Authority. [n4]  See, e.g., United States Dep't of the Treasury, Customs Serv. San Diego Dist., San Diego, Cal., 58 FLRA 240 (2002) (Customs Serv. San Diego) (seeking reconsideration of an Authority order dismissing respondent's exceptions as untimely). As the party seeking reconsideration under § 2429.17, the Unions bear the heavy burden of establishing that extraordinary circumstances exist to justify this unusual action. See, e.g., United States Dep't of the Treasury, IRS, Wash., D.C., 56 FLRA 935, 936 (2000). The Unions have failed to meet this burden.

      In this regard, the Authority has previously found that, where an opposition was filed one day late by commercial delivery (FedEx), there were no extraordinary circumstances warranting waiver of the expired deadline. See NTEU, 60 FLRA 226, 226 n.1 (2004); see also Customs Serv. San Diego, 58 FLRA at 241 n.1 (where a party did not dispute that its exceptions filed by commercial delivery were one day late under § 2429.21(b), the Authority refused to waive the expired time limit); AFGE, Local 3369, 55 FLRA 1074, 1074 n.1 (1999) (Authority refused to consider an opposition filed one-day late); AFSCME, Local 3870, 50 FLRA 445, 448 (1995) ("a simple mistake in filing does not constitute a basis for a waiver of an expired time limit"). In NTEU the Authority also rejected an assertion that lack of prejudice to the proceedings or harm to the other party did not constitute extraordinary circumstances warranting waiver of the expired deadline. See NTEU, 60 FLRA at 226 n.1.

      Consistent with the above precedent, we find that the Unions' request fails to establish extraordinary circumstances warranting reconsideration of the Authority's decision. Accordingly, we deny the Unions' motion and will not consider the arguments set forth in the Unions' response.

      As we will not consider the Unions' untimely response, we will also not consider the Agency's reply to that response. See, e.g., Int'l Fed'n of Prof'l & Technical Eng'rs, Local 29, Goddard Eng'rs, Scientists & Technicians Ass'n, 61 FLRA 382, 383 (2005) (where Authority did not consider union's response, there was no reason to consider agency's reply to that response).

III.     Proposals

      The proposals are set forth in the attached Appendix.

IV.     Meaning of the Proposals

      As the meanings of the proposals are not in dispute, we adopt the meanings set forth by the Unions'. [n5] 

      Proposal 1 requires the Agency to comply with EEOC requirements (specifically, 29 C.F.R. Part 1614 and the EEOC's Management Directive 110 (MD-110)) for processing discrimination complaints. Whenever the EEOC's requirements change, Proposal 1 would require the Agency to comply with the changes as well and to bargain procedures and appropriate arrangements to address any adverse impact resulting from such changes. See Conference Record at 4.

      Proposal 2 contains six subparts, or sections, which address information contained in, and disclosure of, OEEO investigative documents. Sections (a) through (c) describe what information will, or will not, be contained in the acknowledgement letter and acceptance letter, and also describe the conditions under which the acceptance letter will be provided to management and Special Counsel.  [n6]  Section (d) provides that management may, after receipt of the acceptance letter, request that the OEEO conduct an acceptance letter review meeting for clarifying the identity and scope of matters under investigation. Section (e), which contains three separate paragraphs, addresses the authority of the OEEO. Section (f), of which there are seven separate [ v62 p399 ] paragraphs, addresses obligations and functions of the OEEO.

      Proposal 3 requires the Agency to follow the requirements of MD-110 and would prohibit the Agency's managers or its Special Counsel from engaging in conduct that would prevent the OEEO from acting independently when rendering decisions affecting the processing of EEO complaints.

      Section (a) of Proposal 4 requires that complaints of discrimination filed by bargaining unit employees be investigated fairly and objectively and in accordance with the requirements in MD-110. This section also prohibits the Agency's managers or its Special Counsel from engaging in conduct that would violate MD-110's requirement that the Agency's OEEO act independently when making decisions pertaining to the investigation of EEO complaints. Section (b) of Proposal 4 requires the OEEO to maintain an investigative file that includes copies of draft or initial statements given by witnesses, even if the witness later rescinds, alters, or amends that statement.

      Proposal 5 would require the Agency to separate its fact-finding and defensive functions. The proposal would prevent Agency managers or its Special Counsel from drafting the Final Agency Decision (FAD) on the merits of a discrimination complaint or overriding the OEEO Director's decision that a bargaining unit employee was the subject of illegal discrimination. Under the proposal, while Agency managers and Special Counsel would not be prohibited from commenting on the legal sufficiency of the draft FAD, the OEEO Director would have the sole discretion to accept or reject those comments and could not be overruled by Agency managers.

V.     Positions of the Parties

A.      Proposal 1

1.     Unions' Position [n7] 

      The Unions assert that Proposal 1 "merely requires the Agency to comply with Equal Employment Opportunity Commission (EEOC) requirements for the processing of discrimination complaints." Petition for Review at 8. The Unions further state that the proposal is intended to require the Agency's EEO complaint processing to be consistent with 29 C.F.R. Part 1614 and MD-110. See id. In addition, the Unions claim that Proposal 1 "governs and applies to . . . [P]roposals 2 through [5] . . . to the extent [such proposals] would require the Agency to comply with 2[9] C.F.R. Part 1614 and/or the MD-110." Id.

2.      Agency's Position [n8] 

      The Agency asserts that Proposal 1 "is not properly before the Authority" because it does not concern a matter that arose while the parties were "involved in collective bargaining" with the Unions. SOP at 23. The Agency further asserts that, even if the proposal is properly before the Authority, it is nonnegotiable because a "wide-ranging proposal" such as this "necessarily interferes with management's right to assign work to the members of its EEO office, Agency counsel, and other managers and non-unit employees [under] 5 U.S.C. § 7106(a)(2)(A), (B)." Id. at 24, 23.

B.     Proposal 2

1.      Unions' Position [n9] 

      As for sections (a) and (b), the Unions state that the contents of the acknowledgment letter would follow the requirement contained in MD-110 to simply acknowledge that an employee's complaint had been received. The Unions explain that the acceptance letter would restate the claims that an employee asserted, inform the employee as to what claims were accepted for investigation and describe any differences. According to the Unions, the information in the acceptance letter would put the employee on notice as to whether an issue has been accepted for investigation, thus alerting the employee to a possible appealable action. Also according to the Unions, section (c) would, among other things, give the OEEO Director the authority to decide how much information to give to Agency managers about an employee's EEO complaint at the time of the [ v62 p400 ] acceptance letter. The Unions state that section (d) concerns what information will be given to Agency managers, including the Special Counsel, by the OEEO Director.

      According to the Unions, the first paragraph of section (e) gives the OEEO Director the sole discretion to decide whether to disclose a copy of an employee's EEO complaint or to merely summarize the allegations to Agency management or the Special Counsel. Also according to the Unions, the second paragraph of this section gives the OEEO Director the sole discretion to decide whether to disclose "an unredacted copy of a bargaining unit employee's actual EEO complaint or to release a version where personal identifying information about the employee or witnesses should be redacted." Petition for Review at 16. The Unions explain that the third paragraph gives the OEEO Director sole discretion on jurisdictional issues and prohibits the Special Counsel "from interfering with the OEEO Director's independence in deciding whether to accept or reject an employee's EEO complaint on jurisdictional grounds." Id. As to section (f), the Unions state that the first paragraph expresses the parties' "joint preference" that, absent extraordinary circumstances, the OEEO Director will not disclose complainants' or complainants' witnesses' statements to Agency managers or Special Counsel "until after the testimony of management witnesses has first been preserved or memorialized." Id. at 20. The Unions add that if the OEEO Director discloses complainants' or complainants' witnesses' statements to Agency managers or Special Counsel, then the second paragraph of this section would require the OEEO Director to notify the employee of the reasons for the disclosure. Further, the Unions state that the third paragraph provides the OEEO Director with sole discretion to determine which witness statements should be released to Agency managers or Special Counsel, and, if such information is released, then the fourth paragraph permits the Agency to submit additional evidence in response to those statements and gives the OEEO Director sole discretion to determine whether such additional evidence would be included in the record. The fifth paragraph, according to the Unions, gives employees the right to review statements submitted by management witnesses and the sixth paragraph would give the OEEO Director sole discretion to determine whether to release witness statements in the EEO complaint file to Agency managers or Special Counsel. The seventh paragraph would require the OEEO to expedite the investigation of complaints under certain circumstances.

2.     Agency's Position

      The Agency asserts that sections (a) and (b) "are de minimis matters having minimal, if any, impact on bargaining unit employees' conditions of employment and are not subject to collective bargaining." SOP at 24. Additionally, the Agency contends that they "concern the day-to-day duties of staff members of the EEO Office and thus concern the assignment of work of non-unit employees." Id. According to the Agency, by limiting "the time and circumstances in which managerial and supervisory officials and Special Counsel will have access to the Acknowledgment and Acceptance Letters and the information contained therein," sections (c) and (d) "dictat[e] their terms and conditions of employment and restrict[] Agency management's authority to assign and direct their work and the work of the [OEEO] and investigators." Id. at 25. The Agency contends that the first two paragraphs of section (e) "limit the circumstances in which managerial and supervisory officials and Agency Counsel will have access to copies of [c]omplainants' formal complaints in the EEO process," and "call for complete independence on the part of the [OEEO] Director in determining whether copies thereof, in whole or in part, will be provided." Id. at 26 (footnote omitted). The Agency adds that the third paragraph would determine the assignment of work and establish conditions of employment of non-unit employees.

      As for section (f), the Agency asserts that the first paragraph is nonnegotiable because its "decision regarding which information and documentation the [OEEO] should provide to management witnesses prior to preparing their affidavits . . . intrinsically involve the conditions of employment of managers and supervisors, as well as the statutory rights to assign work and direct employees ([OEEO] investigators)." Id. at 27-28. As to the second paragraph, the Agency contends it "is bound up with the proposal regarding the `extraordinary circumstances' required before production of complainant's statements to management witnesses and is not separately negotiable." Id. at 28. As to the third paragraph, the Agency asserts that it "assumes the existence of a general policy of non-disclosure prior to the submission of management statements" and that such a provision "has already been found non-negotiable because it infringes [upon] the rights to assign work and direct employees . . . and because it involves the working conditions of mangers and supervisors." Id. at 29. The Agency contends that the fourth and fifth paragraphs interfere with the rights to assign work and direct employees by restricting the Agency from "supervisory review of certain decisions of the [OEEO] concerning the acceptance or rejection of `new evidence," and "by [ v62 p401 ] requiring the [OEEO] to take certain actions when such `new evidence' is accepted." Id. at 29, 30. The Agency asserts that the sixth paragraph interferes with the rights to assign work and direct employees because it "restrict[s] the Agency from supervisory review of decisions of the [OEEO] concerning the production of documentation to Agency counsel in the event of hearing requests before the EEOC and proceedings in court." Id. at 30. Finally, the Agency asserts that the seventh paragraph is "intrinsically bound up with the non-negotiable limitations of other provisions" relating to the furnishing of statements to management witnesses and interferes with the rights to assign work and direct employees. Id.

C.      Proposal 3

1.      Unions' Position

      The Unions assert that Proposal 3 would require the Agency to follow the requirements of MD-110 when investigating discrimination complaints filed by bargaining unit employees, specifically, the requirement that the OEEO act independently in decisions affecting the outcome of an EEO complaint. The Unions add that "if . . . the EEOC changes MD-110 to eliminate the required separation between an Agency's EEO Office and its defense counsel, then [P]roposal 1 would operate so that the Agency was not being required to act inconsistently with any revised or superseded EEOC rules." Petition for Review at 27.

2.      Agency's Position

      The Agency asserts that Proposal 3 seeks to enforce the Agency's compliance with EEOC policies and, as such, is nonnegotiable because it does not address conditions of employment of bargaining unit employees. The Agency also asserts that the proposal is nonnegotiable because it interferes with management's right to assign and direct employees and to assign work. See SOP at 31.

D.      Proposal 4

1.      Unions' Position

      The Unions state that section (a) of Proposal 4 would require the Agency to follow the requirements of MD-110 when investigating complaints of discrimination and would prohibit the Agency's managers or Special Counsel from interfering with the OEEO Director's ability to "act independently in decisions affecting the investigations of EEO complaints." Petition for Review at 29. The Unions explain that section (b) of Proposal 4 would require maintenance of "the full record of the investigation of an EEO complaint of a bargaining unit employee ... for later evidentiary uses." Id. at 30.

2.      Agency's Position

      The Agency asserts that Proposal 4 is nonnegotiable because it addresses the terms and conditions of employment of supervisors, managers, Special Counsel, and other non-unit employees. In addition, the Agency argues that the proposal interferes with management's rights to assign and direct employees and assign work. See id. at 33.

E.      Proposal 5

1.      Unions' Position

      The Unions state that Proposal 5 "seeks to require the Agency to follow the separation between the fact-finding functions of the OEEO and an agency's defense counsel as required by the EEOC's MD-110." Petition for Review at 32. According to the Unions, the "impact" of the proposal is "to prohibit Agency managers or its Special Counsel from drafting the [FAD] on the merits of a discrimination complaint or overriding the OEEO Director's decision that a bargaining unit employee was subject to illegal discrimination." Id. However, the Unions add that the proposal "would not prohibit agency managers or its Special Counsel from commenting on the legal sufficiency of a draft FAD prepared by the Director OEEO[.]" Id.

2.      Agency's Position

      The Agency contends that this proposal "specifically limit[s] who may or may not be involved in the FAD review process, as well as the scope of review of those involved." SOP at 33. According to the Agency, the proposal is nonnegotiable because it conflicts with management's rights to assign and direct employees and assign work. See id.

VI.      Analysis and Conclusions

      Under the Authority's Regulations, where not previously set forth in the petition for review, the exclusive representative must set forth the following in its response to the agency's statement of position:

the arguments and authorities supporting any assertion that [a] proposal . . . does not affect a management right under 5 U.S.C. [§] 7106(a), and any assertion that an exception to management rights applies, including . . . [w]hether and [ v62 p402 ] why the proposal . . . enforces an `applicable law,' within the meaning of 5 U.S.C [§] 7106(a)(2).

5 C.F.R. § 2424.25(c)(1)(iv).

      As set forth previously, since we will not consider the Unions' untimely response to the Agency's statement of position, the Unions' petition for review contains the Unions' only arguments in support of their petition.

      The exercise of management's rights under § 7106(a)(2) is limited by "applicable laws." NTEU, 42 FLRA 377, 388-91 (1991), enforcement denied on other grounds, 966 F.2d 1246 (D.C. Cir. 1993). Thus, proposals that require an agency to exercise its management's rights in accordance with applicable laws do not interfere with such rights and are within the duty to bargain. See id. The Authority has found that an agency regulation constitutes an "applicable law" where that regulation has "the force and effect of law." Id. at 391. Regulations are found to have the force and effect of law where they: (1) affect individual rights and obligations; (2) were promulgated pursuant to an explicit or implicit delegation of legislative authority by Congress; and (3) were promulgated in conformance with any procedural requirements imposed by Congress. See United States Dep't of the Navy, Naval Undersea Warfare Ctr., Newport, R.I., 55 FLRA 687, 690 (1999) (Dep't of the Navy).

      In their petition for review, the Unions assert that the disputed proposals "merely require[] . . . compl[iance] with" EEOC requirements for the processing of discrimination complaints, specifically 29 C.F.R. Part 1614 and MD-110. Petition for Review at 8. However, the Unions do not explicitly argue that 29 C.F.R. Part 1614 and MD-110 constitute "applicable laws" within the meaning of § 7106(a)(2). Further, the Unions do not explicitly assert either that compliance with 29 C.F.R. Part 1614 and MD-110 renders the proposals negotiable, or that such compliance establishes that the proposals do not conflict with management's rights under § 7106(a)(2). As such, the Unions have failed to expressly state "[w]hether and why the proposal . . . enforces an "applicable law," within the meaning of 5 U.S.C. [§] 7106(a)(2)." 5 C.F.R. § 2424.25(c)(1)(iv).

      Moreover, even if we were to construe the Unions' claim as an assertion that 29 C.F.R. Part 1614 and MD-110 constitute applicable laws, such claim amounts to nothing more that a bare assertion. In this respect, the Unions have failed to provide "arguments and authorities supporting any assertion" that the proposals enforce an applicable law within the meaning of § 7106(a)(2).  [n10]  5 C.F.R. § 2424.25(c)(1)(iv). Accordingly, we reject this claim as a bare assertion. See, e.g., AFGE, Local 1827, 58 FLRA 344, 353 (2003) (Chairman Cabaniss concurring, in part, as to other matters and Member Armendariz dissenting, in part, as to other matters) (union's contention that proposal requires the agency to comply with an applicable law rejected as a bare assertion where union did not support its contention and no basis for concluding so is otherwise apparent from the record). See also United States Dep't of Justice, Fed. Bureau of Prisons, Fed. Corr. Inst., Fed. Satellite Low, La Tuna, Tex., 59 FLRA 374, 376 (2003) (Member Pope concurring as to another matter) (even if construed as an applicable law argument, union's contention that arbitrator's award required compliance with agency's own staffing guidelines rejected as a bare assertion where the union failed to submit those guidelines); United States Dep't of the Army, Army Missile Command, Army Communications Command Agency, Redstone Arsenal, Ala., 59 FLRA 154, 156 (2003) (Member Pope dissenting) (arbitration award set aside where there was "no basis in the record" on which to conclude that the agency regulations the arbitrator was enforcing constituted "applicable law"); AFGE, Nat'l Border Patrol Council, 51 FLRA 1308, 1316 (1996) (where the union did not argue that the agency's Administrative Manual constituted "applicable law," a proposal purporting to require adherence to such Manual was outside the duty to bargain unless the union could establish that it constituted an appropriate arrangement under § 7106(b)(3)).

      According to the Agency, the proposals impermissibly interfere with management rights as follows: Proposals 1, 2(a), 2(b), 2(f), 3, 4, and 5 affect management's right to assign work; Proposals 2(c), 2(d), and 2(e) affect management's right to direct work; and Proposals 2(f), 3, 4, and 5 affect management's right to direct employees. See SOP at 23-33. As set forth above, the Unions made no arguments regarding the negotiability of the proposals in their petition for [ v62 p403 ] review. Section 2424.25(c)(1)(ii) of the Authority's Regulations requires an exclusive representative to set forth its arguments and authorities supporting any assertion that its proposals constitute an exception to management rights, including "[w]hether and why the proposal[s] . . . constitute[] . . . negotiable procedure[s] as set forth in 5 U.S.C. [§] 7106(b)(2)[.]" Although the Unions make one general statement, as background, that the proposals "concern the procedures which the Agency will follow when processing a bargaining unit employee's complaint of employment discrimination[,]" Petition for Review at 5, they present absolutely no argument or authority to support their bare assertion that the proposals constitute negotiable procedures under § 7106(b)(2) of the Statute. When a union fails to support such an assertion, the Authority declines to address it. See, e.g., AFSCME, Local 2830, 60 FLRA 124, 127 (2004) (citing NAGE, Local R1-109, 53 FLRA 403, 411 (1997)). Accordingly, the Unions' assertion provides no basis for concluding that the proposals are within the duty to bargain under § 7106(b)(2). Moreover, apart from their bare assertion, the Unions do not otherwise dispute the Agency's assertions that the proposals are outside the duty to bargain because they conflict with management rights. [n11] 

      Consistent with the above precedent and the Authority's Regulations, we conclude that Proposals 1, 2(a), 2(b), 2(f), 3, 4, and 5 affect management's right to assign work; Proposals 2(c), 2(d), and 2(e) affect management's right to direct work; and Proposals 2(f), 3, 4, and 5 affect management's right to direct employees. Accordingly, we find that all of the proposals are outside the duty to bargain. [n12] 

VII.      Order

      The petition for review is dismissed.


APPENDIX

Proposal 1

The parties agree that the Agency's EEO program will at all times be in compliance with the EEOC's Regulations (29 C.F.R. Part 1614) and the EEOC's Management Directive MD-110. At such time as those EEOC issuances change any management obligations in the agreed upon provisions, the new requirements of those EEOC issuances shall supersede the provisions agreed upon. Moreover, at such time as those EEOC issuances change any management obligations in the agreed upon provisions, management will also negotiate procedures and appropriate arrangements to address issues of adverse impact raised by the implementation of any required changes.

Proposal 2

Access to OEEO Investigative Documents By Management And Agency Special Counsel

a.     Acknowledgement Letter: The parties agree that the OEEO's "acknowledgement letter" will no longer contain a recitation of the complaint allegations, because the 1999 Revisions to the EEOC Management Directive 110 (MD- 110) have abandoned the practice.

b.     Acceptance Letter: The parties agree that the subsequent "acceptance letter" will contain a description of the claims asserted in the complaint and the claims to be investigated, along with an explanation of the differences between them, if any.

c.     The acceptance letter will be automatically provided to management and, upon request, it will be provided to Special Counsel. The OEEO will present the acceptance letter within a reasonable period before management is required to produce its evidence. The acceptance letter, in addition to describing the claims asserted and those under investigation will, where the OEEO deems appropriate, include the date(s) of the alleged actionable event(s), the managers or supervisors allegedly involved as actors or witnesses and the remedy requested by the complainant.

d.     Acceptance Letter Review Meeting: MD-110, Chapter 1, § III provides that an agency's EEO program should ensure that the agency's EEO director is able to act with the greatest degree of independence. To that end, Management may, after receipt of the acceptance letter, request that the OEEO conduct an "acceptance letter review meeting" for clarifying the identity and scope of matters under investigation. If Special Counsel requests to attend, then OEEO, in the exercise of its sole [ v62 p404 ] independent discretion will decide, on a case-by-case basis, whether to grant the request. The OEEO will use its discretion to determine whether, given the circumstances of the case, it will provide any additional information than that already contained in the acceptance letter and what that additional information shall be.

e.     Formal Complaint

1.     The OEEO will exercise its sole independent discretion in deciding whether to provide a copy of the formal complaint to management or Special Counsel. The OEEO will promptly, and in writing, notify the Complainant that the disclosure has or will be made and the reasons justifying the disclosure of the formal complaint.
2.     The OEEO shall exercise its sole and independent discretion and determine whether in the interests of a fair and equitable investigation management will be presented with a complete, partial, redacted or unredacted copy of the complaint and any amendments thereto. If the OEEO determines that a redacted copy of the complaint will be presented, then it will, to the extent practicable, remove witness or similarly situated bargaining unit employee identifiers consistent with maintaining the integrity of the EEO process.
3.     MD-110, Chapter 1, § III provides that an agency's EEO program should ensure that the agency's EEO director is able to act with the greatest degree of independence. To that end, the OEEO shall have the sole and independent authority to determine whether a formal complaint is accepted or rejected on jurisdictional/procedural grounds. To preserve the independence required by the MD-110, Management and Special Counsel shall not advise the OEEO of any jurisdictional or procedural issues prior to the OEEO's independent determination of whether the formal complaint is accepted or rejected. If, before the OEEO has made its determination, management or Special Counsel wishes to offer information concerning jurisdictional or procedural issues, then management or Special Counsel will first, in writing and without disclosing the jurisdictional or procedural issues involved, request the OEEO to consider the circumstances that it contends warrant the OEEO's preemptive consideration of the issues. The OEEO will provide a written response justifying its decision to either accept or reject management or Special Counsel's request to intervene in the OEEO's legal sufficiency review process. Both the request and answer will be preserved in the OEEO investigative record.

f.     Complainants' and Witnesses' Statement(s): (Footnote omitted.)

1.     The OEEO will strive to investigate formal complaints by gathering evidence from complainants, complainant witnesses and management witnesses as equitably as is practicable. Thus, because complainants must generally provide the investigator with his/her version of events before hearing the details of management's version of events, it is the preference of the Unions and Management that the OEEO shall not, absent extraordinary circumstances, disclose complainants' or complainant witnesses' statements to management or Special Counsel before management witnesses preserve their testimony or position on the matters under investigation. However, although the Unions and Management have expressed a preference, the OEEO will exercise its sole independent discretion in deciding whether to provide a copy of complainants' or complainant witnesses' statements to management or Special Counsel. (Footnote omitted.)
2.     Upon documenting and preserving evidence of all extraordinary circumstances deemed by the OEEO to warrant disclosure of the statement(s), the OEEO will promptly, and in writing, notify the complainant and any affected witness(es) that the disclosure has or will be made and the reasons justifying the disclosure.
3.     MD-110, Chapter 1, § III provides that an agency's EEO program should ensure that the agency's EEO director is able to act with the greatest degree of independence. To that end, the OEEO shall exercise its sole and independent discretion and determine whether to grant requests made by management or Special Counsel for the disclosure of complainants' or complainant witnesses' statements after all management witnesses have preserved their testimony or position(s) on the matters under investigation. If OEEO grants the request for production, then the OEEO will promptly, and in writing, notify the complainant and any affected witness(es) that the disclosure has or will be made and the reasons justifying the disclosure.
4.     If a disclosure of statements is made in accordance with Section (1)(f)(3) above, and if management or Special Counsel, thereafter, seeks to [ v62 p405 ] submit evidence from new witnesses covering any subjects contained in the disclosed statements, then the OEEO shall exercise sole discretion to determine whether it will either accept or reject the new evidence. If new evidence is accepted pursuant to this section, then OEEO will grant the complainant a sufficient opportunity to fully review the new evidence and to provide a response thereto.
5.     If the OEEO discloses complainants' or complainant witnesses' statements to management or Special Counsel, then the OEEO will also, in writing, grant the complainant a reasonable opportunity to review management's statement(s) and to submit a response thereto, which may be in the form of a supplemental statement. The provisions of Section (1)(f)(2) above apply to management or Special Counsel's request for OEEO to disclose complainants' response to management statements.
6.     MD-110, Chapter 1, § III provides that an agency's EEO program should ensure that the agency's EEO director is able to act with the greatest degree of independence. To that end, the OEEO shall exercise its sole and independent discretion to grant any management or Special Counsel request for the production of complainants' or complainants [sic] witnesses' statements, where the request is in connection with a scheduled court or formal administrative proceeding in which the Agency or manager requesting the statements is a party, party representative, or if disclosure is otherwise required by law.
7.     The OEEO shall expedite the investigation of any formal complaint, which alleges that the complainant was subjected to retaliation by a management official because the official reviewed or was made aware of the contents of a complainant's statement presented to the investigator.

Proposal 3

Role of Special Counsel in the Investigation

MD-110, Chapter 1, § III provides that an agency's EEO program should ensure that the agency's EEO director is able to act with the greatest degree of independence and that there must be a separation between the fact-finding and defensive functions of the agency. To that end neither management nor Special Counsel will engage in conduct before the OEEO that violates the mandated separation between the adjudicatory role of the OEEO and the defensive role of the Special Counsel as mandated by the EEOC's MD-110, or engage in conduct that interferes with the OEEO's independent determination of the appropriate investigative methods used to assure that each individual complaint is fairly and thoroughly investigated, interferes with the timely completion of the investigation, or interferes with OEEO's exclusive responsibility to ensure that final action on the complaint is completed in a timely manner.

Proposal 4

Methods of Investigation

(a)     As provided by the EEOC's MD-110, the OEEO will investigate formal complaints by gathering evidence from complainants, complainant witnesses and management witnesses as equitably and timely as is practicable. The OEEO shall exercise its sole and independent discretion and, as dictated by the circumstances of each case, use any combination of investigative techniques that include, but are not expressly limited to, face-to-face interviews, phone and video interviews, party-prepared statements, interrogatories, and the use of recording devices to preserve interviews. The preferred method for obtaining evidence from all witnesses, in most cases, is by the OEEO investigator's development of sworn statements resulting from face-to-face or, alternatively, phone or video interviews. To reduce any actual or apparent lack of commitment to the regulatory requirement of impartial administration of the OEEO's complaint process, neither management nor Special Counsel will, contrary to MD-110, attempt to dictate or otherwise interfere with, restrain or coerce the OEEO in its independent determination of the appropriate method(s) that will be used to investigate any formal complaint or the OEEO's exercise of any such methods.
(b)     The OEEO will preserve in the investigative record not only edited/revised versions of the parties' evidence, but also all other relevant evidence including, but not limited to, the parties' initial and/or unedited explanations of events (whether or not in the form of investigative notes) and earlier drafts of adopted statements.

Proposal 5

Review of Final Agency Decisions (FADs)

MD-110, Chapter 1, § III provides that an agency's EEO program should ensure that the agency's EEO director is able to act with the greatest degree of independence and that there must be a separation between [ v62 p406 ] the fact-finding and defensive functions of the agency. To that end:

(a)     This agreement codifies and continues the current practice whereby the Agency-heads have empowered the Director of OEEO with final authority to approve and issue all FADs.
(b)     Special Counsel will not review or be involved in reviewing drafts of FADs.
(c)     Any management review of an FAD shall be limited to a legal sufficiency review and must not result in a binding opinion of the OEEO.
(d)      Any representative for the body (Board-side or General Counsel-side) where the challenged action(s) arose shall not review FADs.



Footnote # 1 for 62 FLRA No. 76 - Authority's Decision

   The Unions withdrew two additional proposals (Proposals 6 and 7) in their untimely response. See infra Part II. Consistent with Authority precedent, we find that Proposals 6 and 7 are not before the Authority for resolution. See NFFE, Local 1214, 40 FLRA 1181, 1182-83 (1991) (although Authority did not consider untimely union response to statement of position, Authority accepted withdrawal of portions of union's appeal made in the untimely response, as a union may withdraw its appeal at any time).


Footnote # 2 for 62 FLRA No. 76 - Authority's Decision

   In addition to that motion, the Agency also filed a "Motion for Expedited Ruling on Motion to Dismiss," which the Authority's then-Case Control and Legal Publications Office (CCO) (currently Case Intake and Publication (CIP)) denied in an Order dated February 10, 2005.


Footnote # 3 for 62 FLRA No. 76 - Authority's Decision

   The Unions have requested that the Authority reconsider its Order finding that the Unions' response was untimely. For the reasons discussed below in Part II, we deny the Unions' request for reconsideration of this Order.


Footnote # 4 for 62 FLRA No. 76 - Authority's Decision

   The Authority has identified a limited number of situations in which extraordinary circumstances have been found to exist. These include situations: (1) where an intervening court decision or change in the law affected dispositive issues; (2) where evidence, information, or issues crucial to the decision had not been presented to the Authority; (3) where the Authority erred in its remedial order, process, conclusion of law, or factual finding; and (4) where the moving party was not given an opportunity to address an issue raised sua sponte by the Authority in its decision. See United States Dep't of the Air Force, 375th Combat Support Group, Scott Air Force Base, Ill., 50 FLRA 84, 85-87 (1995).


Footnote # 5 for 62 FLRA No. 76 - Authority's Decision

   Although the Agency objects to several items in the Conference Record and requests that the record be corrected, see infra n.8, the Agency does not dispute that it "accepted the Unions' explanation of the meaning" of the proposals. Conference Record at 4- 6.


Footnote # 6 for 62 FLRA No. 76 - Authority's Decision

   The terms "acceptance letter" and "acknowledgment letter" are defined in MD-110 and refer to letters that an agency is required to provide to a complainant. The term "Special Counsel" refers to a group of individuals in the Agency who, as relevant here, represent the Agency in EEO matters. Conference Record at 3. In addition, the Union states that the term "management," as used in the proposals "specifically excludes Agency Special Counsel." Petition for Review at 10 n.4. Finally, as was explained at the Post-Petition Conference, the term "OEEO" refers to employees, generally, of the Agency's Equal Employment Opportunity Office "rather than to specific officials within the office." Conference Record at 4.


Footnote # 7 for 62 FLRA No. 76 - Authority's Decision

   As set forth above, we will not consider the Unions' untimely response to the Agency's statement of position. Thus, the Unions' petition for review contains the Unions' only arguments in support of their petition.


Footnote # 8 for 62 FLRA No. 76 - Authority's Decision

   The Conference Record states that "any objection to the content of the record may be raised in the Agency's statement of position and the Unions' response to the statement of position, respectively." Conference Record at 6. Thus, as a preliminary matter, the Agency objects to several items in the Conference Record and requests that the record be corrected. See SOP at 4-6. Specifically, the Agency seeks to replace entire paragraphs, or portions thereof, with its own description of the conference participants and the background of the case and also seeks to correct and/or amplify statements it made at the conference to include, for example, additional legal arguments. As set forth below in n.12, we do not address the Agency's request.


Footnote # 9 for 62 FLRA No. 76 - Authority's Decision

   The Unions request severance of Proposals 2, 4, and 5. See Petition for Review at 10, 31. The Agency opposes the Unions' request. See SOP at 15. As set forth below in n.12, we do not address the Unions' request.


Footnote # 10 for 62 FLRA No. 76 - Authority's Decision

   Under the Authority's prior regulations governing negotiability appeals, the Authority held that a union's claim that a proposal required compliance with a state law was "tantamount to a claim that [such law] constitute[d] an applicable law" and conducted an analysis of that claim in the absence of arguments by the parties. NAGE, Local R1-203, 55 FLRA 1081, 1086 (1999) (Chair Segal concurring as to another matter) (NAGE). Insofar as NAGE may be read as holding that the Authority will undertake an applicable law analysis even when the parties fail to properly raise the issue, it will no longer be followed.


Footnote # 11 for 62 FLRA No. 76 - Authority's Decision

   The Agency similarly asserts -- and the Unions do not dispute -- that Proposals 2(a), 2(b), 2(e), 2(f), 3, and 4 purport to regulate the substantive con