ORAL ARGUMENT REQUESTED
IN THE UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
No. 01-9528
_______________________________
TINKER AIR FORCE BASE,
OKLAHOMA CITY AIR LOGISTICS CENTER,
OKLAHOMA CITY, OKLAHOMA,
Petitioner
v.
FEDERAL LABOR RELATIONS AUTHORITY,
Respondent
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO, LOCAL 916,
Intervenor
_______________________________
ON PETITION FOR REVIEW AND CROSS-APPLICATION
FOR ENFORCEMENT OF AN ORDER OF
THE FEDERAL LABOR RELATIONS AUTHORITY
BRIEF FOR THE FEDERAL LABOR RELATIONS AUTHORITY
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
STATEMENT OF JURISDICTION 1
STATEMENT OF THE ISSUE 2
STATEMENT OF THE CASE 2
STATEMENT OF THE FACTS 3
I. Background 3
II. The ALJ's Decision 4
III. Proceedings before the Authority 5
STANDARD OF REVIEW 7
SUMMARY OF ARGUMENT 8
ARGUMENT 12
I. THE COURT LACKS SUBJECT MATTER JURISDICTION BECAUSE THE PETITIONER FAILED TO
FILE TIMELY EXCEPTIONS TO THE DECISION OF THE ALJ WITH THE AUTHORITY 12
A. Basic Legal Principles 12
B. The Authority Did Not Abuse Its Discretion by Refusing
to Accept Tinker AFB's Improperly Filed Exceptions 14
C. Tinker's Failure to Timely File Exceptions Is Not
Excused by Futility 16
1. The Futility Exception to the Administrative
Exhaustion Requirement Is to Be Narrowly Applied 17
2. The Futility Exception Does Not Apply in this Case 20
II. ASSUMING THE COURT'S JURISDICTION, THE AUTHORITY PROPERLY DETERMINED
THAT MEETINGS BETWEEN REPRESENTATIVES OF TINKER AFB AND BARGAINING UNIT
EMPLOYEES, TO DISCUSS A FORMAL DISCRIMINATION COMPLAINT, CONSTITUTED
FORMAL DISCUSSIONS CONCERNING A GRIEVANCE PURSUANT TO § 7114(a)(2)(A)
OF THE STATUTE 24
A. The Express Language of the Statute 24
B. The Legislative History of the Statute 27
C. The Purpose of the Statute's Provisions 29
D. This Court's Decision in Veterans Affairs .31
E. Tinker AFB's Arguments Concerning the Confidentiality of EEOC Proceedings 33
CONCLUSION 36
STATEMENT REGARDING ORAL ARGUMENT 37
CERTIFICATION PURSUANT TO FRAP RULE 32 38
ADDENDA
Relevant portions of the Federal Service Labor-Management Relations
Statute, 5 U.S.C. §§ 7101-7135 (2000) and other pertinent statutory
and regulatory provisions A-1
TABLE OF AUTHORITIES
CASES
AFGE, Local 1345 v. FLRA, 793 F.2d 1360 (D.C. Cir. 1986) 29
AFGE v. FLRA, 865 F.2d 1283 (D.C. Cir. 1989) 25, 29
Am. Farm Lines v. Black Ball Freight Serv., 397 U.S. 532 (1970) 7
Am. Fed'n of Gov't Employees, Local 2343 v. FLRA, 144 F.3d 85 (D.C. Cir. 1998) 7
Am. Fed'n of Gov't Employees v. FLRA, 744 F.2d 73 (10th Cir. 1984) 7
Andrews v. Orr, 851 F.2d 146 (6th Cir. 1988) 15, 16
Aramark Corp. v. NLRB, 179 F.3d 872 (10th Cir. 1999) 24
Baldwin County Welcome Ctr. v. Brown, 466 U.S. 147 (1984) 15
Bureau of Alcohol, Tobacco and Firearms v. FLRA, 464 U.S. 89 (1983) 7
C.E. Carlson, Inc. v. S.E.C., 859 F.2d 1429 (10th Cir.1988) 18
Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984) 7
Climax Molybdenum Co. v. Sec'y of Labor, 703 F.2d 447 (10th Cir. 1983) 7
Dep't of the Treasury v. FLRA, 837 F.2d 1163 (D.C. Cir. 1988) 7
Dep't of Veterans Affairs, Denver, Colo. v. FLRA,
3 F.3d 1386 (10th Cir. 1993) 26, 29, 30, 31, 32, 33
Dep't of Veterans Affairs Med. Ctr., Long Beach, Cal. v. FLRA,
16 F.3d 1526 (9th Cir. 1994) 33
Detroit Edison Co. v. NLRB, 440 U.S. 301 (1979) 13
Diaz v. United Agric. Employee Welfare Benefit Plan & Trust,
50 F.3d 1478 (9th Cir. 1995) 19
Drukker Communications, Inc. v. NLRB, 700 F.2d 727
(D.C. Cir. 1983) 13
EEOC v. FLRA, 476 U.S. 19 (1986) 13, 22
FLRA v. Dep't of Justice, No. 97-4001 (2d Cir. Oct. 7, 1999) 17
FLRA v. Dep't of Justice, 137 F.3d 683 (2d Cir. 1998),
vacated and remanded by 527 U.S. 1031 (1999) 9, 16, 20, 23
FLRA v. Dep't of Justice, 527 U.S. 1031 (1999) 17
Fizer v. Safeway Stores, Inc., 586 F.2d 182 (10th Cir. 1978) 18
Green Country Mobile Phone, Inc. v. F.C.C., 765 F.2d 235
(D.C. Cir. 1985) 7, 15
Greene v. Meese, 875 F.2d 639 (7th Cir. 1989) 18, 22
Gustafson v. Alloyd Co., 513 U.S. 561 (1995) 25
Hooper v. Nat'l Transp. Safety Bd., 841 F.2d 1150 (D.C. Cir. 1988) 8, 15
Internal Revenue Service, Fresno Service Center v. FLRA,
706 F.2d 1019 (9th Cir. 1983), 29, 33
Jefferson-Pilot Corp. v. Commissioner of Internal Revenue,
12 F.3d 1005 (10th Cir. 1993) 26
KBI Security Serv., Inc. v. NLRB, 91 F.3d 291 (2d Cir. 1996) 14
Kawaauhau v. Geiger, 523 U.S. 57 (1998) 26
Kelley v. NLRB, 79 F.3d 1238 (1st Cir. 1996) 16
Keystone Roofing Co. v. OSHRC, 539 F.2d 960 (3rd Cir. 1976) 19
Makar v. Health Care Corp., 872 F.2d 80 (4th Cir. 1989) 19
Marine Mammal Conservancy, Inc. v. Dep't of Agric.,
134 F.3d 409 (D.C. Cir. 1998) 19
Mountain Solutions, Ltd., Inc. v. FCC, 197 F.3d 512 (D.C. Cir. 1999) 15
NASA v. FLRA, 527 U.S. 229 (1999) 34, 35
NLRB v. Dominick's Finer Foods, Inc., 28 F.3d 678 (7th Cir. 1994) 14
NLRB v. FLRA, 2 F.3d 1190 (D.C. Cir. 1993) 23
NLRB v. Howard Immel, Inc., 102 F.3d 948 (7th Cir. 1996) 14
NLRB v. L&B Cooling, Inc., 757 F.2d 236 (10th Cir. 1985); 14
NLRB v. Tri-State Warehouse & Distributing, Inc.,
677 F.2d 31 (6th Cir. 1982) 14
NTEU v. FLRA, 774 F.2d 1181
(D.C. Cir. 1985) 25, 26, 27, 29, 30, 32
Overseas Education Association, Inc. v. FLRA, 961 F.2d 36
(2d Cir. 1992) 19
Randolph-Sheppard Vendors of Am. v. Weinberger, 795 F.2d 90
(D.C. Cir. 1995) 18
Springer v. Wal-Mart Assocs. Group Health Plan, 908 F.2d 897
(11th Cir. 1990) 19
Tele-Communications, Inc. v. Commissioner of Internal Revenue,
12 F.3d 1005 (10th Cir. 1993) 25
Thetford Properties v. United States Dep't of Housing & Urban Dev.,
907 F.2d 445 (4th Cir. 1990) 19
UDC Chairs Chapter, Am. Ass'n of Univ. Professors v. Bd. of Trustees
of the University of the Dist. of Columbia, 56 F.3d 1469
(D.C. Cir. 1995) 18
U.S. Immigration and Naturalization Serv. v. FLRA, 4 F.3d 268
(4th Cir. 1993) 34
United States Dep't of Energy v. FLRA, 880 F.2d 1163 (10th Cir. 1989) 7
United States v. L.A. Tucker Truck Lines, 344 U.S. 33 (1952) 17
Urban v. Jefferson County School Dist. R-1, 89 F.3d 720 (10th Cir. 1996) 18
Van Dorn Plastic Mach. Co. v. NLRB, 881 F.2d 302 (6th Cir. 1989) 19
Washington Ass'n for Tel. & Children v. FCC, 712 F.2d 677
(D.C. Cir. 1983) 17
Woelke & Romero Framing, Inc. v. NLRB, 456 U.S. 645 (1982) 13
In Re Yochum, 89 F.3d 661 (9th Cir. 1996) 25
DECISIONS OF THE FEDERAL LABOR RELATIONS AUTHORITY
Dep't of the Air Force, 436th Airlift Wing, Dover Air Force Base,
Dover, Del., 57 F.L.R.A. 304 (2001), petition for review filed,
No. 01-1373 (D.C. Cir. Aug 24, 2001) 10, 22, 35
Dep't of the Air Force, March Air Reserve Base, Calif.,
57 F.L.R.A. 392 (2001) 30
Dep't of the Air Force, Scott Air Force Base, 51 F.L.R.A. 675 (1995) 22
Luke Air Force Base, Arizona, 54 F.L.R.A. 716 (1998),
rev'd Luke Air Force Base v. FLRA, 208 F.3d 221
(9th Cir. 1999)(Table), cert. denied 121 S. Ct. 60 (2000) 4, 21, 30
United States Dep't of Justice, Bureau of Prisons, Fed. Corr. Inst.,
Ray Brook, NY, 29 F.L.R.A. 584 (1987), aff'd sub nom.
AFGE v. FLRA, 865 F.2d 1283 (D.C. Cir. 1989). 29, 30
United States Immigration and Naturalization Serv.,
United States Border Patrol, El Paso, Tex., 47 F.L.R.A. 170 (1993) 30
STATUTES
Federal Service Labor-Management Relations Statute,
5 U.S.C. §§ 7101-7135 (2000) 1
5 U.S.C. § 7103(a)(9) 4, 10, 25, 27, 31
5 U.S.C. § 7105(a)(2)(G) 1
5 U.S.C. § 7114 26, 28, 30
5 U.S.C. § 7114(a)(2)(A) passim
5 U.S.C. § 7114(a)(2)(B) 34
5 U.S.C. § 7116(a)(1) 2
5 U.S.C. § 7116(a)(8) 2
5 U.S.C. § 7118 2
5 U.S.C. § 7121 26, 27, 28
5 U.S.C. § 7121(b)(1)(C) 27
5 U.S.C. § 7121(c) 29
5 U.S.C. § 7123(b) 2
5 U.S.C. § 7701- 7703 32
5 U.S.C. § 7702 32
42 U.S.C. § 2000e-16(a) 4, 10
42 U.S.C. § 2000e-16(c) 10
National Labor Relations Act, 29 U.S.C. § 160(e) 13
Privacy Act of 1974, 5 U.S.C. § 552a 34
CODE OF FEDERAL REGULATIONS
5 C.F.R. § 2423.34 5
5 C.F.R. § 2423.41(a) 2, 5, 6, 12, 13, 14
5 C.F.R. § 2429.24 5, 14
29 C.F.R. § 102.46 (b) (1978) 13
29 C.F.R. § 1614.108 3
29 C.F.R. Pt. 1201 32
29 C.F.R. Pt. 1614 32
LEGISLATIVE HISTORY
H.R. Rep. No. 95-1403 (1978), reprinted in Subcommittee on
Postal Personnel and Modernization of the Committee on Post
Office and Civil Service, 96th Congress, 1st Sess., Legislative
History of the Federal Service Labor-Management Relations Statute,
Title VII of the Civil Service Reform Act of 1978 27, 28, 29
MISCELLANEOUS
Executive Order 12,106, 3 C.F.R. 586 (1978), reprinted in
42 U.S.C. § 2000e-4 note 32
Executive Order 12,107, 3 C.F.R. 791 (1978), reprinted in
5 U.S.C. § 1101 note 32
67 U.S.L.W. 3344 (U.S. Nov. 17, 1998) 17
STATEMENT OF RELATED CASES
There are no prior or related appeals in this case. However, Department of
the Air Force, 436th Airlift Wing, Dover Air Force Base v. FLRA, No. 01-1373
(D.C. Cir., oral argument scheduled Oct. 10, 2002) also concerns a union's
right under 5 U.S.C. § 7114(a)(2)(A) to have notice and an opportunity to
attend formal discussions concerning discrimination complaints filed
pursuant to EEOC procedures.
IN THE UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
No. 01-9528
_______________________________
TINKER AIR FORCE BASE,
OKLAHOMA CITY AIR LOGISTICS CENTER,
OKLAHOMA CITY, OKLAHOMA,
Petitioner
v.
FEDERAL LABOR RELATIONS AUTHORITY,
Respondent
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO, LOCAL 916,
Intervenor
_______________________________
ON PETITION FOR REVIEW AND CROSS-APPLICATION
FOR ENFORCEMENT OF AN ORDER OF
THE FEDERAL LABOR RELATIONS AUTHORITY
BRIEF FOR THE FEDERAL LABOR RELATIONS AUTHORITY
STATEMENT OF JURISDICTION
The order under review in this case was issued by the Federal Labor
Relations Authority (Authority) on May 29, 2001, and is found at Appendix
(App.) 68-70. The Authority exercised jurisdiction over the case pursuant
to § 7105(a)(2)(G) of the Federal Service Labor-Management Relations
Statute, 5 U.S.C. §§ 7101-7135 (2000) (Statute).[1] This Court lacks
subject matter jurisdiction to review the Authority's order in this case
because by failing to file timely exceptions to the decision of the
Administrative Law Judge (ALJ) with the Authority, petitioner, Tinker Air
Force Base, Oklahoma City Air Logistics Center, Oklahoma City, Oklahoma
(Tinker AFB), has waived all objections to the Authority's final order.
This Court has jurisdiction to enforce the Authority's order pursuant to §
7123(b) of the Statute.[2]
STATEMENT OF THE ISSUE
I. Whether the Court lacks subject matter jurisdiction because the petitioner
failed to file timely exceptions to the decision of the ALJ with the Authority.
II. Assuming the Court's jurisdiction, whether the Authority properly determined
that meetings between representatives of Tinker AFB and bargaining unit
employees, to discuss a formal discrimination complaint, constituted formal
discussions concerning a grievance pursuant to § 7114(a)(2)(A) of the Statute.
STATEMENT OF THE CASE
This case arose as an unfair labor practice (ULP) proceeding brought under §
7118 of the Statute. The Authority adjudicated a ULP complaint based on a
charge filed by the American Federation of Government Employees, Local 916
("Local 916" or "the Union") alleging that Tinker AFB violated § 7116(a)(1)
and (8) of the Statute by holding formal discussions with bargaining unit
members without affording the Union adequate notice and an opportunity to
attend. An Authority ALJ heard the case and issued a recommended order
finding that Tinker AFB violated the Statute as alleged. Tinker AFB
attempted to file exceptions to the ALJ's decision, but the Authority
determined that the exceptions were not timely filed. Accordingly, pursuant
to § 2423.41(a) of its regulations, 5 C.F.R. § 2423.41(a) (2002), the
Authority held that the findings, conclusions, and recommendations of the
ALJ constituted, without precedential significance, the findings,
conclusions, and decision and order of the Authority.
Tinker AFB now seeks review of the Authority's final order and the Authority
seeks enforcement of its order. Local 916 has intervened on the Authority's
behalf.
STATEMENT OF THE FACTS
I. Background
The American Federation of Government Employees (AFGE) is the exclusive
bargaining representative of a nationwide consolidated unit of certain Air
Force employees, including the employees located at Tinker AFB. Local 916
is AFGE's agent for purposes of representing bargaining unit employees at
Tinker AFB. The applicable collective bargaining agreement provides that
where an employee believes that he or she is the victim of illegal
discrimination, the employee may use either the negotiated grievance
procedure or file a complaint under the procedures of the Equal Employment
Opportunity Commission (EEOC). App.19. Under the EEOC complaint process
the employing agency must investigate the complaint. 29 C.F.R. § 1614.108.
The Department of Defense has created the Office of Complaint Investigations
(OCI) to conduct these investigations throughout the Department. App.
19-20.
Two bargaining unit employees filed complaints under the EEOC procedures,
alleging illegal discrimination by Tinker AFB. Both employees designated
Local 916 to be their representative at all phases of the complaint process.
In turn, Local 916 notified Tinker AFB's Chief of Labor Relations of the
specific individual designated in each case to be present whenever unit
employees were to be "interviewed by Agency representatives (including OCI
investigators) . . . ." App. 21. The Labor Relations Chief never replied
to the Union's letter. Id.
Tinker accepted both of the complaints and an OCI investigator was assigned
to conduct the investigations. App. 21-22. In the course of the
investigations, the OCI investigator interviewed two bargaining unit members
other than the complainants. Local 916 was never notified of the interviews
and therefore had no opportunity to attend the meetings. App. 22-23.
II. The ALJ's Decision
The ALJ concluded that Tinker AFB violated § 7114(a)(2)(A) of the Statute by
not affording Local 916 an opportunity to attend the interviews of
bargaining unit employees conducted by the OCI investigator. App. 23-24.
Section 7114(a) provides in pertinent part that:
(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[.]
5 U.S.C. § 7114(a)(2)(A).
The ALJ first determined that the interviews were formal discussions between
a representative of the agency and bargaining unit employees. App. 25-29.[3]
Then the ALJ found that the interviews concerned "grievances" within the meaning
of § 7114(a)(2)(A). Relying on the Authority's decision in Luke Air Force
Base, Arizona, 54 F.L.R.A. 716 (1998) (Luke AFB), rev'd Luke Air Force Base v.
FLRA, 208 F.3d 221 (9th Cir. 1999) (Table), cert. denied, 121 S. Ct. 60 (2000),
the ALJ noted that the Authority applies the broad definition of grievance found
in § 7103(a)(9) of the Statute and that the Authority's application had been
endorsed by the United States Courts of Appeals for the Tenth and District of
Columbia Circuits.[4] Also relying on Luke AFB, the ALJ held that union
presence at discussions in the EEOC process would not conflict with the
regulations of the EEOC or the Administrative Dispute Resolution Act (ADR Act).
App. 29-30.
Consistent with the foregoing, the ALJ recommended that the Authority issue
an appropriate remedial order. App. 31. In accordance with § 2423.34 of
the Authority's regulations, 5 C.F.R. § 2423.34, the ALJ transmitted his
decision to the Authority and served copies on all parties. The ALJ's
notice transmitting his decision to the parties provided specific directions
concerning the filing of exceptions with the Authority. The notice stated:
PLEASE BE ADVISED that the filing of exceptions to the attached Decision is
governed by 5 C.F.R. §§ 2423.40-2423.41, 2429.12, 2429.21-2429.22,
2429.24-2429.25, and 2429.27.
Any such exceptions must be filed on or before APRIL 30, 2001, and addressed to:
Federal Labor Relations Authority
Office of Case Control
607 14th Street, NW., Suite 415
Washington, DC 20424-0001
App 17. The address specified in the ALJ's notice was drawn directly from §
2429.24 of the Authority's regulations, which the notice cited.
III. Proceedings before the Authority
On May 8, 2001, having received no exceptions to the ALJ's decision, the
Authority issued an "Order to Show Cause," requiring Tinker AFB to show
cause why the Authority should not take action under § 2423.41(a) of the
Authority's regulations, 5 C.F.R. § 2423.41(a) (2001). App. 34. Section
2423.41(a) provides that in the absence of timely-filed exceptions, the
findings, conclusions, and recommendations of the ALJ shall, without
precedential significance, become the findings, conclusions, decision and
order of the Authority. In addition, the regulation states that, absent
timely exceptions, all objections and exceptions to the rulings and decision
of the ALJ shall be deemed waived for all purposes. The Order to Show Cause
noted that the Authority's General Counsel and Local 916 had filed
oppositions to exceptions, but that the Authority had not received any
exceptions from Tinker AFB. The Order to Show Cause provided Tinker AFB the
opportunity to furnish proof that its exceptions had been timely filed with
the Authority. App. 35.
In its "Agency Response to Order to Show Cause," Tinker AFB stated that
although it failed to file its exceptions with the Case Control Office, it
timely served copies on, among others, the Authority's General Counsel and
the Authority's Chief ALJ. App. 37-39. Tinker AFB asserted that by serving
the Authority's General Counsel it had perfected service on the Authority
and that its failure to file exceptions following the directions in the
ALJ's transmittal notice was regretful, but "de minimus in nature." App.
39. Tinker AFB attached a copy of its exceptions to its response. App.
44-65.
On May 29, 2001, the Authority issued an unpublished order finding that
Tinker AFB's exceptions were not timely filed. The Authority noted that its
regulations require that exceptions be filed with the Case Control Office,
and that the Case Control Office failed to receive the exceptions until they
were filed along with the response to the Show Cause Order. Consequently,
pursuant to § 2423.41(a) of its regulations, the Authority held that the
findings, conclusions, and recommendations of the ALJ constituted, without
precedential significance, the findings, conclusions, and decision and order
of the Authority. App. 68-70.
STANDARD OF REVIEW
The standard of review of Authority decisions is "narrow." Am. Fed'n of
Gov't Employees, Local 2343 v. FLRA, 144 F.3d 85, 88 (D.C. Cir. 1998).
Because of its expertise in interpreting federal labor law, the Authority
"is entitled to considerable deference." Am. Fed'n of Gov't Employees v.
FLRA, 744 F.2d 73, 75 (10th Cir. 1984) (quoting Bureau of Alcohol, Tobacco
and Firearms v. FLRA, 464 U.S. 89, 97 (1983)). Authority action shall be
set aside only if it is "arbitrary, capricious, an abuse of discretion, or .
. . otherwise not in accordance with law." United States Dep't of Energy v.
FLRA, 880 F.2d 1163, 1165 (10th Cir. 1989) (citing 5 U.S.C. § 706(2)(A)).
Under this standard, unless it appears from the Statute or its legislative
history that the Authority's construction of its enabling act is not one
that Congress would have sanctioned, the Authority's construction should be
upheld. See Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467
U.S. 837, 844 (1984). A court should defer to the Authority's construction
as long as it is reasonable. See id. at 845. To the extent the Authority is
required to interpret and apply other statutes, although it is not entitled
to deference, the Authority's interpretation should be followed to the
extent the reasoning is "sound." Dep't of the Treasury v. FLRA, 837 F.2d
1163, 1167 (D.C. Cir. 1988).
Furthermore, administrative agencies retain substantial discretion in
formulating, interpreting, and applying their own procedural rules. Climax
Molybdenum Co. v. Sec'y of Labor, 703 F.2d 447, 451 (10th Cir. 1983) (citing
Am. Farm Lines v. Black Ball Freight Serv., 397 U.S. 532, 539 (1970)). As
relevant here, agency determinations not to waive procedural requirements
will be reversed only when the agency has abused its discretion. Green
Country Mobile Phone, Inc. v. F.C.C., 765 F.2d 235, 238 (D.C. Cir. 1985)
(Green Country). The burden to show an abuse of discretion "is a heavy
one," and only where an agency has inconsistently applied a procedural rule
will a reviewing court find that an agency abused its discretion in such
matters. Id.; see also Hooper v. Nat'l Transp. Safety Bd., 841 F.2d 1150,
1151 n.2 (D.C. Cir. 1988) (agency may enforce a rule as strictly as it
pleases as long as it does so uniformly).
SUMMARY OF ARGUMENT
1. Under the National Labor Relations Act, where a party fails to timely file
exceptions to the decision of the agency's ALJ, that party fails to preserve its
contentions for judicial review. This well-established principle is equally
applicable to the analogous provisions for judicial review under the Statute.
Because Tinker AFB concededly failed to timely file exceptions in accordance
with the Authority's regulations, this Court is without jurisdiction to consider
Tinker AFB's objections to the ALJ's decision. Tinker AFB argues, without
merit, that: (1) the Authority abused its discretion by refusing to accept the
misfiled exceptions; and (2) that Tinker AFB should be excused from filing
exceptions because to do so would have been futile.
A. The burden of establishing that an administrative agency has abused its
discretion in denying a waiver of its procedural rules is a heavy one, and
an agency's strict, but consistent, application of its rules is insufficient
to establish such an abuse. Here, Tinker AFB cites no appellate cases where
a similar administrative determination has been reversed, nor any case where
the Authority has waived a time limit under similar circumstances. Tinker
AFB contends only that there would be no prejudice to other parties if the
time limits were waived in this case. However, the lack of prejudice is a
factor in waiving procedural requirements only when other mitigating factors
are present. As no other reason for waiving the Authority's procedural
requirements are asserted, much less established, Tinker AFB clearly has
not met its burden to establish an abuse of discretion by the Authority.
B. Alternatively, Tinker AFB argues that "extraordinary circumstances,"
specifically the futility of filing exceptions, excuse its failure to
present its objections to the Authority. Not only is Tinker AFB's
interpretation of the futility exception overly expansive, but on any
interpretation the exception does not apply in the facts of this case. To
support its futility argument, Tinker AFB cites only FLRA v. Dep't of
Justice, 137 F.3d 683 (2d Cir. 1998), vacated and remanded by 527 U.S. 1031
(1999). The liberal application of the futility exception found in that
case is inconsistent with the view of the Supreme Court, and this and other
circuit courts, all of which disfavor the application of the futility
exception to the requirement of administrative exhaustion.
Further, there is no basis on which to conclude that filing exceptions in
this case would have been a futile gesture. Apparently not foreseeing
futility, Tinker AFB attempted to file multiple exceptions, but because it
failed to adhere to the Authority's regulations and the ALJ's instructions,
the exceptions were not timely filed. Tinker AFB's futility argument
constitutes only a post hoc attempt to escape the consequences of its
conceded failure to abide by the Authority's regulations. In addition, the
issues raised by Tinker AFB in its untimely-filed exceptions concerned
matters as to which the Authority did not have established precedent, either
because they were fact specific to the case at hand or they involved issues
never decided by the Authority.
Attempting to evade this difficulty, Tinker AFB only brings to this Court
the one issue that has an extended history of litigation, namely, whether
discrimination complaints filed under the procedures of the EEOC are
"grievances" within the scope of § 7114(a)(2)(A) of the Statute. However,
even with respect to this issue there was no reason to believe that the
Authority's position was so well entrenched that filing exceptions would be
futile. As noted by Tinker AFB, the Authority's view had been rejected by
the Ninth Circuit and at the time of the ALJ's decision in the instant case,
the Authority had not revisited the issue. Nor does the Authority's
subsequent decision in Dep't of the Air Force, 436th Airlift Wing, Dover Air
Force Base, Dover, Del., 57 F.L.R.A. 304 (2001) (Dover AFB), petition for
review filed, No. 01-1373 (D.C. Cir. Aug 24, 2001) support Tinker AFB's
futility argument. Although the Authority continued to hold that EEOC
complaints are "grievances" within the scope of § 7114(a)(2)(A), one member
of the Authority reconsidered her earlier views and dissented. Further, the
majority expanded on its rationale in light of the Ninth Circuit's reversal.
Similar consideration would have likely been granted to Tinker AFB's
arguments had its exceptions been properly filed.
2. Assuming the Court's jurisdiction, Tinker AFB's arguments on the merits
should be rejected. Tinker AFB mistakenly contends that complaints of illegal
discrimination filed pursuant to the statutory procedures administered by the
EEOC are not "grievances" within the scope of § 7114(a)(2)(A) of the Statute.
The definitional section of the Statute defines grievance as "any complaint . .
. by any employee concerning any matter relating to the employment of the
employee[.]" 5 U.S.C. § 7103(a)(9). To maintain its position, Tinker AFB must
establish that an employee's allegation of illegal discrimination by his or her
employer is not a complaint by an employee concerning a matter related to his or
her employment. Such a proposition is facially absurd and must be rejected.
Nonetheless, Tinker AFB argues that, irrespective of the Statute's clear
definition, the term "grievance" is limited to grievances pursued under a
negotiated grievance procedure (NGP). Besides being contrary to the
Statute's plain language, this argument is also without any collateral
support. This Court, as well as the Ninth and District of Columbia
Circuits, have held that the term "grievance" encompasses complaints filed
under statutory appeals processes as well as under NGPs. As these courts
have recognized, the Statute and its legislative history show that statutory
appeals are simply alternative forums for pursuing grievances, not a
category separate and apart from "grievances."
Tinker AFB's attempts to distinguish this clear precedent on the grounds
that those cases concerned appeals to the Merit Systems Protection Board
(MSPB) are unavailing. Initially, Tinker AFB does not point to anything in
the Statute to explain why "any complaint" includes MSPB procedures, but
excludes EEOC procedures. In addition, with regard to the meaning of
"grievance" in § 7114(a)(2)(A), there is no relevant difference between MSPB
procedures and EEOC procedures. Both procedures are different than NGPs,
and both are governed by rules and regulations of independent government
agencies.
Finally, the special confidentiality concerns that Tinker AFB suggests are
present in EEOC complaints are insufficient to support a nontextual
construction of the term "grievance" as used in section 7114(a)(2)(A).
First, nothing in the statutes or regulations governing EEOC complaints
prohibit union attendance at discussions concerning those complaints.
Second, EEOC complaints are not unique in that they raise sensitive and
personal matters. Many employee complaints, regardless of the forum in
which they are raised may involve such matters. Thirdly, Tinker AFB does not
contend that there are any confidentiality issues present in this case.
Instead, it raises these issues only in general or hypothetical terms. The
Authority has recently reaffirmed that where actual conflicts between the
rights of a complainant and those of a union are raised they will be
considered. However, the Authority has reasonably stated that such issues
are most appropriately addressed when present in an actual case, not when
raised hypothetically.
ARGUMENT
I. THE COURT LACKS SUBJECT MATTER JURISDICTION BECAUSE THE PETITIONER FAILED TO
FILE TIMELY EXCEPTIONS TO THE DECISION OF THE ALJ WITH THE AUTHORITY
By failing to file timely exceptions to the ALJ's decision, Tinker AFB
waived "for all purposes" all objections and exceptions to the findings and
conclusions of the ALJ. 5 C.F.R. § 2423.41(a). Accordingly, Tinker AFB is
precluded from objecting to the ALJ's decision before this Court. See 5
U.S.C. § 7123(c). Tinker AFB concedes that it did not file exceptions in
accordance with the Authority's regulations, but argues that it may,
nonetheless, press its objections before this Court. In that regard, Tinker
AFB argues alternatively that: (1) the Authority abused its discretion by
refusing to accept Tinker AFB's misfiled exceptions (Petitioner's Brief
(Br.) 24-26); and (2) in any event, Tinker AFB should be excused from
filing exceptions because to do so would have been futile (Br. 19-24).
Neither argument has merit.[5]
A. Basic Legal Principles
It is well established that a party may not raise before the Court an
argument not presented to the Authority. Pursuant to 5 U.S.C. § 7123(c),
"[n]o objection that has not been urged before the Authority, or its
designee, shall be considered by the court, unless the failure or neglect to
urge such objection is excused because of extraordinary circumstances." 5
U.S.C. § 7123(c). The Supreme Court has explained that the purpose of this
provision is to ensure "that the [Authority] shall pass upon issues arising
under the [Statute], thereby bringing its expertise to bear on the
resolution of those issues." EEOC v. FLRA, 476 U.S. 19, 23 (1986) (EEOC).
Section 7123(c)'s language "is virtually identical to that found in § 10(e)
of the National Labor Relations Act[ (NLRA)], 29 U.S.C. § 160(e), which
provides that '[n]o objection that has not been urged before the [National
Labor Relations] Board . . . shall be considered by the court, unless the
failure or neglect to urge such objection shall be excused because of
extraordinary circumstances.'" EEOC, 476 U.S. at 23. The Supreme Court has
interpreted § 10(e) to mean that a court of appeals is "without jurisdiction
to consider" an issue not raised before the National Labor Relations Board
("Board" or "NLRB") if the failure to do so is not excused by extraordinary
circumstances. Woelke & Romero Framing, Inc. v. NLRB, 456 U.S. 645, 665-66
(1982).
Further, and as relevant here, in applying § 10(e) of the NLRA, the
Supreme Court has barred consideration of a matter which, though part of
the ALJ's decision, was not excepted to before the Board. Detroit Edison
Co. v. NLRB, 440 U.S. 301, 311 & n.10 (1979) (Detroit Edison); see also
Drukker Communications, Inc. v. NLRB, 700 F.2d 727, 734 n.6 (D.C. Cir.
1983). The Supreme Court's analysis in Detroit Edison is directly
applicable to the case at hand. The Court there found that a regulation
of the Board, 29 C.F.R. § 102.46(b) (1978), which provided that any
exception to a finding of the ALJ not specifically urged before the Board
"shall be deemed to have been waived," served a sound purpose and was
binding on the Court. 440 U.S. at 312 n.10. Section 2423.41(a) of the
Authority's regulations similarly provides that in the absence of timely
exceptions to an ALJ's decision, "all objections and exceptions [thereto]
shall be deemed waived for all purposes." 5 C.F.R. § 2423.41(a).
Applying these principles, this Court, as well as other courts of appeals,
have consistently held that they are without jurisdiction to consider
matters raised before an ALJ but not timely excepted to before the Board.
See NLRB v. L&B Cooling, Inc., 757 F.2d 236, 240 (10th Cir. 1985); see
also NLRB v. Howard Immel, Inc., 102 F.3d 948, 951 (7th Cir. 1996); KBI
Security Serv., Inc. v. NLRB, 91 F.3d 291, 294 (2d Cir. 1996); NLRB v.
Tri-State Warehouse & Distributing, Inc., 677 F.2d 31, 31-32 (6th Cir.
1982). This well-established principle should similarly be applied to the
facts in this case.
B. The Authority Did Not Abuse Its Discretion by Refusing to Accept Tinker
AFB's Improperly Filed Exceptions
As noted above, it is not disputed that Tinker AFB did not file exceptions
in accordance with the Authority's regulations. In spite of the explicit
directions found in both the ALJ's transmittal notice accompanying his
decision and § 2429.24 of the Authority's regulations, referenced in the
notice, Tinker AFB did not file its exceptions with the appropriate
Authority component within the prescribed time limits.[6] The Authority's
regulations also make it clear that in order to preserve objections to an
ALJ's decision, exceptions must be filed pursuant to those regulations. See
5 C.F.R. § 2423.41(a). Matters must be presented to the Authority at the
proper time and in accordance with its prescribed practices. See NLRB v.
Dominick's Finer Foods, Inc., 28 F.3d 678, 685-86 (7th Cir. 1994) (holding
that raising matters to agents of the Board is insufficient to preserve
issue for review if exceptions not filed with the Board).
Although Tinker AFB correctly asserts that under the Authority's regulations
the Authority has the discretion to waive the time limits for filing
exceptions (see 5 C.F.R. § 2429.23), Tinker AFB fails to demonstrate that
the Authority abused its discretion by not waiving the time limits in this
case. It is well established that in this context the burden to show an
abuse of discretion "is a heavy one." Green Country, 765 F.2d at 238. In
that regard, reviewing courts will not second guess an agency's strict
application of its own procedural regulations. Id. at 237. Standing
alone, an agency's strict construction of a procedural rule in the face of a
waiver request is insufficient evidence of an abuse of discretion.
Mountain Solutions, Ltd., Inc. v. FCC, 197 F.3d 512, 517 (D.C. Cir. 1999)
(citations omitted). Generally, only where an agency has inconsistently
applied a procedural rule will a reviewing court find that an agency abused
its discretion in such matters. Green Country, 765 F.2d at 238; see also
Hooper v. Nat'l Transp. Safety Bd., 841 F.2d 1150, 1151 n.2 (D.C. Cir. 1988)
(holding that an agency may enforce a rule as strictly as it pleases as long
as it does so uniformly).
Tinker AFB does no more than simply assert that the Authority has abused its
discretion, citing no authority for reversing the Authority's determination.
In that regard, Tinker AFB references no appellate cases where an analogous
administrative determination has been reversed, nor any case where the
Authority has waived a time limit under similar circumstances. Tinker AFB's
only suggested rationale (Br. 25), but without supporting authority, is that
there would be no prejudice to other parties if the time limits were waived
in this case. However, it is well established that the lack of prejudice is
a factor in waiving procedural requirements only when other mitigating
factors are present. See Baldwin County Welcome Ctr. v. Brown, 466 U.S.
147, 152 (1984) (Baldwin County) ("Although absence of prejudice is a factor
to be considered in determining whether the doctrine of equitable tolling
should apply once a factor that might justify such tolling is identified, it
is not an independent basis for invoking the doctrine and sanctioning
deviations from established procedures."). As the Sixth Circuit has held,
in order to justify tolling or waiving time limits, "we [must] look beyond
the absence of prejudice[.]" Andrews v. Orr, 851 F.2d 146, 151 (6th Cir.
1988); see also Kelley v. NLRB, 79 F.3d 1238, 1250 (1st Cir. 1996)
(explaining that in ULP context, absence of prejudice is not an independent
basis "sanctioning deviations from established procedures") (quoting Baldwin
County, 466 U.S. at 152).
Tinker AFB clearly has not met its burden to establish an abuse of
discretion on the Authority's part.
C. Tinker's Failure to Timely File Exceptions Is Not Excused by Futility
As discussed above, § 7123(c) of the Statute deprives a reviewing court of
jurisdiction over matters not objected to before the Authority "unless the
failure or neglect to urge the objection is excused because of
extraordinary circumstances." Tinker AFB contends (Br. 19-24) that, even
if the Authority properly deemed its exceptions untimely, extraordinary
circumstances exist that excuse its failure to present its objections to
the Authority. Specifically, Tinker AFB contends that its failure to
exhaust the Authority's process should be excused because "the filing of
exceptions would have been a futile gesture." Br. 23. In support of its
contention Tinker relies only on FLRA v. Dep't of Justice, 137 F.3d 683 (2d
Cir. 1998) (Dep't of Justice), vacated and remanded by 527 U.S. 1031
(1999). As demonstrated below, Tinker AFB's arguments are meritless.
First, it urges an overly expansive interpretation of the futility
exception that is inconsistent with the views of the Supreme Court and
other courts of appeals, including this one. Second, under any
interpretation of futility, the exception does not apply in the facts of
this case.
1. The Futility Exception to the Administrative Exhaustion Requirement
Is To Be Narrowly Applied
"Futility should not lightly be presumed," as the D.C. Circuit observed
based upon its analysis of the Supreme Court's decision in United States v.
L.A. Tucker Truck Lines, 344 U.S. 33, 37 (1952) (L.A. Tucker). Washington
Ass'n for Tel. & Children v. FCC, 712 F.2d 677, 682 n.9 (D.C. Cir. 1983).
The Supreme Court stated in L.A. Tucker that "orderly procedure and good
administration require that objections to the proceedings of an
administrative agency be made while it has opportunity for correction in
order to raise issues reviewable by the courts." 344 U.S. at 37. This
requirement holds even when it is argued that the administrative agency "had
a predetermined policy on [the relevant] subject which would have required
it to overrule the objection if made," because repetition of an objection
could lead to a change of policy by the agency. Id. Thus, "[s]imple
fairness . . . requires as a general rule that courts should not topple over
administrative decisions unless the administrative body not only has erred
but has erred against objection made at the time appropriate under its
practice." Id.
To counter this established Supreme Court precedent, Tinker AFB relies on
Dep't of Justice, a Second Circuit case lacking viability as precedent
because the judgment was vacated by the Supreme Court. In that case, the
Authority sought certiorari on both the administrative exhaustion issue and
on the merits question in the case. See 67 U.S.L.W. 3344 (U.S. Nov. 17,
1998). The Supreme Court, in a memorandum order without further
explication, granted certiorari, vacated the judgment, and remanded the
case for further consideration. FLRA v. Dep't of Justice, 527 U.S. 1031
(1999). On remand the court enforced the Authority's order. FLRA v.
Dep't of Justice, No. 97-4001 (2d Cir. Oct. 7, 1999). However, even
assuming the continued viability of Dep't of Justice, the liberal
application of the futility exception employed by the Second Circuit should
not be adopted by this Court because it is inconsistent with the view of
the Supreme Court and other courts of appeals.
The Second Circuit's overly indulgent interpretation and application of the
futility exception conflicts not only with the L.A. Tucker language set out
above, but also with other circuits' more restrictive views of
administrative exhaustion and the futility exception. In rejecting a
futility argument, the Seventh Circuit explained why the futility exception
should be reluctantly applied:
No doubt denial is the likeliest outcome, but that is not sufficient reason for
waiving the requirement of exhaustion. Lightning may strike; and even if it
doesn't, in denying relief the Bureau may give a statement of reasons that is
helpful to the district court in considering the merits of the claim.
Greene v. Meese, 875 F.2d 639, 641 (7th Cir. 1989). This Court has also
narrowly construed the futility doctrine. See C.E. Carlson, Inc. v. S.E.C., 859
F.2d 1429, 1439 (10th Cir. 1988) (stating that agency's past response is not a
sufficient ground for presuming futility); see also Fizer v. Safeway Stores,
Inc., 586 F.2d 182, 183 (10th Cir. 1978) (holding that exhaustion of remedies
may be excused only on a "clear and positive showing of futility") (internal
quotations omitted). In addition, this Court has held that the futility
exception applies only where "structural or systemic" failures render exhaustion
futile. Urban v. Jefferson County School Dist. R-1, 89 F.3d 720, 725 (10th Cir.
1996) (internal quotations omitted).
In addition, the D.C. Circuit has consistently held that the mere
"'probability of administrative denial of the relief requested does not
excuse the failure to pursue' administrative remedies." UDC Chairs Chapter,
Am. Ass'n of Univ. Professors v. Bd. of Trustees of the University of the
Dist. of Columbia, 56 F.3d 1469, 1475 (D.C. Cir. 1995) (quoting Randolph-
Sheppard Vendors of Am. v. Weinberger, 795 F.2d 90, 105 (D.C. Cir. 1986)).
Futility can serve as an exceptional circumstance (or "extraordinary"
circumstance under § 7123(c)'s language) "where 'an agency has articulated a
very clear position on the issue which it has demonstrated it would be
unwilling to reconsider.'" Id. In contrast to the Second Circuit, in
applying the futility exception the D.C. Circuit requires "'the certainty of
an adverse decision' or indications that pursuit of administrative remedies
would be 'clearly useless.'" Id. As did the Seventh Circuit, the D.C.
Circuit has recognized that an agency may always alter or modify its
position in response to persuasive arguments. Marine Mammal Conservancy,
Inc. v. Dep't of Agric., 134 F.3d 409, 413 (D.C. Cir. 1998).
Similarly, virtually all other courts of appeals have been reluctant to
excuse the requirement to exhaust administrative remedies on the grounds of
futility.[7] Contrary to Tinker AFB's suggestions, this Court should not
adopt the Second Circuit's expansive application of the futility
exception.[8]
2. The Futility Exception Does Not Apply in this Case
Even if there are circumstances where "futility" would excuse a party's
failure to raise a matter before the Authority, there is no basis on which
to excuse Tinker AFB's failure to file exceptions in this case.
Initially, Tinker AFB's clear intent to file exceptions, contained in its
22-page "Brief in Support of Exceptions to the Decision of the
Administrative Law Judge" (App. 44-65), belies its claim that filing
exceptions was futile. Tinker AFB simply failed to timely file its
exceptions in accordance with the Authority's clear procedural requirements,
explicitly set forth in the Authority's regulations and the ALJ's
instructions. Tinker AFB's futility argument constitutes a post hoc attempt
by Tinker AFB to escape the consequences of its conceded failure to abide by
the Authority's regulations.[9]
But in any event, there can be no showing of futility in this case. At
issue in the administrative proceeding was whether Tinker AFB, in its role
as employer, committed unfair labor practices by holding formal discussions
with bargaining unit employees without notifying its employees' exclusive
representative as required under § 7114(a)(2)(A) of the Statute. The formal
discussions concerned the investigation of two discrimination complaints
filed by other bargaining unit employees. Most of the numerous issues
raised by Tinker AFB in its untimely-filed Exceptions Brief concerned
matters as to which the Authority did not have any established precedent.
For example, Tinker AFB contested whether the meetings at issue were
mandatory and whether the OCI investigator at the meeting was a
"representative of the agency." App. 46-47. The former issue is fact
specific to this case, and the latter has never been decided by the
Authority.[10] Therefore, Tinker AFB cannot viably claim that raising such
issues before the Authority would have been futile.
However, Tinker AFB ignores those issues over which filing exceptions would
clearly not be futile and discusses only one issue that has an extended
history of litigation, namely, whether discrimination complaints filed under
the procedures of the EEOC constitute "grievances" within the scope of §
7114(a)(2)(A) of the Statute. Nevertheless, even with respect to this issue
there is no reason to believe that the Authority's position was so well
entrenched that filing exceptions would be futile. As noted by Tinker AFB,
the Authority's view has been rejected by the Ninth Circuit and at the time
of the ALJ's decision in the instant case, the Authority had not revisited
the issue.[11]
Tinker AFB's reliance on the Authority's subsequent decision in Department
of the Air Force, 436th Airlift Wing, Dover Air Force Base, Dover, Delaware,
57 F.L.R.A. 304 (2001) (Dover AFB), petition for review filed, No. 01-1373
(D.C. Cir. Aug 24, 2001) is unavailing. First, the Dover AFB decision
issued after the time limits for filing exceptions in the instant case
expired and thus could not have been a factor in Tinker AFB's determination
with respect to the futility of filing exceptions.
Second, to the extent the Dover AFB decision is relevant herein, that
decision shows that filing exceptions in the instant case would not have
been futile. Significantly, in Dover AFB, the first decision issued on the
subject after the Ninth Circuit decision in Luke AFB, Member (now Chairman)
Cabaniss reconsidered her earlier views and dissented, stating she would
adopt the holding of the Ninth Circuit reversing Luke AFB. 57 F.L.R.A. at
312. But in addition, the majority opinion, in light of the Ninth Circuit's
decision "[took] the opportunity to thoroughly review [the] issue." Id. at
308. Such a thorough review serves the purposes of administrative
exhaustion by allowing the Authority to "pass upon issues arising under the
Statute, thereby bringing its expertise to bear on the resolution of those
issues," even if the ultimate disposition remains unchanged. EEOC, 476 U.S.
at 23; see also Greene v. Meese, 875 F.2d at 641. It is reasonable to
assume that the Authority would have granted similar consideration to Tinker
AFB's arguments had its exceptions been properly filed. Accordingly,
Tinker's contention (Br. 23-24) that the Authority could not have provided
any new guidance on the matter is disproven by the Authority's Dover AFB
decision.
For all these reasons, the Court should reject Tinker AFB's contention that
filing exceptions would have been futile in this case.[12] Because Tinker
AFB failed to raise any objections before the Authority, and there are no
"extraordinary circumstances" to excuse this failure, this Court should
decline to hear Tinker AFB's objections and dismiss the petition for review
for lack of jurisdiction.[13]
II. ASSUMING THE COURT'S JURISDICTION, THE AUTHORITY PROPERLY DETERMINED THAT
MEETINGS BETWEEN REPRESENTATIVES OF TINKER AFB AND BARGAINING UNIT EMPLOYEES, TO
DISCUSS A FORMAL DISCRIMINATION COMPLAINT, CONSTITUTED FORMAL DISCUSSIONS
CONCERNING A GRIEVANCE PURSUANT TO § 7114(a)(2)(A) OF THE STATUTE
Tinker AFB mistakenly contends that complaints of illegal discrimination
filed pursuant to the statutory procedures administered by the EEOC are not
"grievances" within the scope of § 7114(a)(2)(A) of the Statute.
Essentially, Tinker AFB argues that the term "grievance" is limited to those
complaints pursued through the parties' negotiated grievance procedure
(NGP). As demonstrated below, this excessively narrow interpretation of the
Statute's definition of "grievance" is inconsistent with the express
terminology, legislative history, and purpose of the provisions of the
Statute under consideration, as well as with the precedent of this Court.
Rather, as the Authority has held, the term "grievance," as used in the
Statute, refers to all employment-related complaints regardless of the forum
in which they are pursued. Additionally, the confidentiality concerns
expressed by Tinker AFB do not constitute legal impediments to a union's
right to attend formal discussions concerning EEOC complaints.
A. The Express Language of the Statute
"In accordance with the first principle of statutory construction, this
court begins its analysis with the plain language of [the statute]."
Aramark Corp. v. NLRB, 179 F.3d 872, 878 (10th Cir. 1999). 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 § 7114(a)(2)(A), the first place to look is the Statute's express
definition of "grievance" in § 7103(a)(9). See Gustafson v. Alloyd Co.,
513 U.S. 561, 570 (1995) ("[I]dentical words used in different parts of the
same act are intended to have the same meaning.") (internal quotation marks
omitted); 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.") (citation omitted). The express language of § 7103(a)(9) provides no
basis for limiting the definition of "grievance," as Tinker AFB argues here,
so as to exclude complaints brought pursuant to EEOC statutory procedures.
To the contrary, the Statute defines "grievance" as:
any complaint-
(A) by any employee concerning any matter relating to the employment of the
employee[.]
5 U.S.C. § 7103(a)(9)(A) (emphasis added).
Thus, by its plain terms, the Statute's broad definition of "grievance"
encompasses any employment-related complaint, regardless of the forum in
which the complaint may be pursued. See AFGE v. FLRA, 865 F.2d 1283, 1286
(D.C. Cir. 1989) ("It is understood that a grievance may arise either
pursuant to a statutory procedure or a contractually administered process.")
(citation omitted). Congress's repeated use of the modifier "any"
underscores its intent that the definition be as inclusive as possible. In
this case, the employees' complaints that they were victims of illegal
discrimination by their employing agency are undeniably "complaint[s] by
employee[s] concerning [a] matter relating to [their employment]," i.e., a
"grievance" under the Statute's definition. The Statute could not be more
clear. See Tele-Communications, Inc. v. Commissioner of Internal Revenue,
12 F.3d 1005, 1007 (10th Cir. 1993) (stating that where the language of the
statutory definition is plain, the court's "'sole function is to apply it
according to its terms.'") (quoting Jefferson-Pilot Corp. v. Commissioner of
Internal Revenue Serv., 995 F.2d 530, 531 (4th Cir. 1993)).
Contrary to Tinker AFB's arguments, § 7121 of the Statute provides no basis
for limiting the definition of "grievance." Rather, § 7121 indicates
specifically that a "grievance" includes both those complaints filed through
the NGP and those filed through alternative statutory procedures.
Subsections 7121(d) and (e) provide that "aggrieved employees" affected by
illegal discrimination may raise these matters under either a statutory
procedure or a 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 v. FLRA, 774 F.2d 1181, 1187 (D.C. Cir. 1985) (NTEU).
Section 7121(a)'s reference to § 7121(d) and (e) in discussing the scope and
exclusivity of NGPs also indicates that a "grievance" includes complaints
filed under statutory procedures. 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) states in this regard that NGPs are the exclusive
administrative procedures for resolving grievances that fall within the
NGP's coverage, "[e]xcept as provided in subsections (d) [and] (e) . . . of
this section." Accordingly, this section recognizes that discrimination
complaints filed under statutory procedures are in fact "grievances" and
provides that this class of grievances may be processed through either a
contractual or a statutory procedure. See NTEU, 774 F.2d at 1187-88 ("[T]he
statutory procedures referred to in § 7121(d) and (e) are also procedures
for resolving grievances."). As will be discussed in section D below, this
Court has specifically recognized that the term "grievance" encompasses
statutory appeals as well as complaints processed under the NGP. Dep't of
Veterans Affairs, Denver, Colo. v. FLRA, 3 F.3d 1386, 1390-91 (10th Cir.
1993) (Veterans Affairs).
Finally, the "grievances" referred to in § 7114 must be broader than the
grievances that are processed through the NGP pursuant to § 7121. Union
presence is already assured throughout the NGP, pursuant to § 7121(b)(1)(C)
(i) and (ii). If § 7114(a)(2)(A)'s "grievance" was limited to grievances
processed through the NGP, then the formal discussion right set out in §
7114 would merely duplicate the rights provided in § 7121(b)(1)(C). Such a
reading would render that portion of § 7114(a)(2)(A) superfluous. See
Kawaauhau v. Geiger, 523 U.S. 57, 63 (1998) (The court is hesitant to adopt
an interpretation of statute that renders superfluous portion of the same
law.).
B. The Legislative History of the Statute
Although the Statute's language is perfectly clear, Tinker AFB contends (Br.
30) that the Statute's legislative history "contradicts" the Authority's
broad interpretation of the term grievance. In so claiming, Tinker AFB
misreads and misapplies the legislative history. To the contrary, the
legislative history supports the Authority's position.
The definition of grievance is discussed only in the Report of the House
Committee on Post Office and Civil Service. There the committee stated that
"[i]t should be noted that, although [§ 7103(a)(9)] 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)
(House Report); reprinted in Subcommittee on Postal Personnel and
Modernization of the Committee on Post Office and Civil Service, 96th
Congress, 1st Sess., Legislative History of the Federal Service Labor-
Management Relations Statute, Title VII of the Civil Service Reform Act of
1978 (Legis. Hist.) at 686.
This passage, however, provides no support for the proposition that EEOC
complaints are not grievances within the scope of § 7114(a)(2)(A). First,
although the passage indicates that § 7121 excludes some grievances from
coverage under the NGP, the term "grievance" is not limited to matters
covered under the NGP. See NTEU, 774 F.2d at 1188 (explaining that "[t]he
only plausible reading" of this history is "that § 7121 ensures that some
grievances cannot be processed under [an NGP]."). By recognizing that some
grievances are excluded from the NGP, the passage makes clear that the term
"grievance" should not be limited to matters covered by an NGP. Second, to
the extent the passage supports a narrowed "effect" of the term
"grievance," it does so with respect only to the NGP in § 7121, not
regarding the formal discussion right provided for by § 7114. Rather, the
passage contrasts the "all-inclusive" nature of the Statute's definition of
"grievance" with the express limitations found in § 7121. Significantly,
there are no limitations on the effect of the term "grievance" found in §
7114. Third, in referring to matters excluded from the NGP in § 7121, this
passage could not have been referring to statutory discrimination
complaints. In the first place, § 7121 does not exclude such complaints
from the NGP. Instead, § 7121 provides only that for such complaints, the
NGP is not the exclusive forum.
However, Tinker AFB commits a more fundamental error in its reliance on this
passage from the House Report. As reported out of committee, § 7121 of H.R.
11280 did not contain the choice of forum provisions relied upon by Tinker
AFB. See House Report at 55-56; Legis. Hist. at 701-02. It is evident,
therefore, that the House Report was referring to those matters actually
excluded from the NGP by § 7121(c).[14]
C. The Purpose of the Statute's Provisions
Quoting from Internal Revenue Service, Fresno Service Center v. FLRA, 706
F.2d 1019, 1024-25 (9th Cir. 1983) (IRS, Fresno), Tinker AFB argues (Br. 34)
that the purposes of § 7114(a)(2)(A) are not implicated here because the
Union has "no such institutional role in the EEOC process." This
perspective ignores important policies and purposes behind the Statute's
formal discussion right. As the Authority has stated, the purpose of §
7114(a)(2)(A) is to "safeguard [the union's] interests and the interests of
employees in the bargaining unit - - viewed in the context of a union's full
range of responsibilities under the Statute." United States Dep't of
Justice, Bureau of Prisons, Fed. Corr. Inst., Ray Brook, NY, 29 F.L.R.A.
584, 589 (1987) (FCI Ray Brook), aff'd sub nom. AFGE v. FLRA, 865 F.2d 1283,
1287 (D.C. Cir. 1989). Contrary to Tinker AFB's arguments, unions have an
established interest in how allegations of discrimination are dealt with and
resolved, regardless of the forum in which the employee chooses to lodge the
complaint or whether the aggrieved employee seeks union assistance. NTEU,
774 F.2d at 1188; see also AFGE, Local 1345 v. FLRA, 793 F.2d 1360, 1363-64
(D.C. Cir. 1986) (recognizing a union's § 7114 interest in discipline
afforded bargaining unit employees, even though the employees did not file a
grievance or seek union representation concerning the discipline).
In addition, the processing of an individual complaint through EEOC
procedures can have an effect on the entire bargaining unit, which the union
represents. Luke AFB, 54 F.L.R.A. at 731; see also Dep't of the Air Force,
March Air Reserve Base, Calif., 57 F.L.R.A. 392, 393 (2001). In that
regard, this Court has specifically recognized that, by providing formal
discussion rights for discrete "grievances" and not just general personnel
policies, the Statute "recognizes that the resolution of an individual
employee complaint may have an impact on the rights of other unit
employees." Veterans Affairs, 3 F.3d at 1390.
Tinker AFB, on the other hand, takes too narrow a view of the union's role
in the workplace, relegating unions to the role of mere grievance-
processors. Thus, Tinker mistakenly contends that the union's role in
formal discussions must be analogous to the representational role assumed in
the NGP and that the Authority's interpretation of the Statute is intended
to "engraft on these statutory procedures the entire panoply of rules
governing the [NGP]." Br. 46. Such hyperbole is wholly unsubstantiated.
The Authority has consistently recognized that "a union's institutional role
with respect to statutory appeal matters is more restricted than its role in
the negotiated grievance procedure." FCI, Ray Brook, 29 F.L.R.A. at 590.
As relevant here, the Authority holds only that where all the elements of a
formal discussion are met, the union has a right to attend a meeting
regarding a bargaining unit employee's formal discrimination complaint. As
the Authority specifically noted in FCI, Ray Brook, consideration must be
given to any conflict between union rights under § 7114(a)(2)(A) and rights
of other parties, including the aggrieved employee, under alternative
statutory procedures. Id.; see also United States Immigration and
Naturalization Serv., United States Border Patrol, El Paso, Tex., 47
F.L.R.A. 170, 184-187(1993) (holding that deposition of bargaining unit
employee in connection with MSPB appeal was a formal discussion which the
union was entitled to attend, but pursuant to MSPB regulations, active
participation in the deposition was prohibited). Contrary to Tinker AFB's
suggestion (Br. 46), the Authority has never held that a union should have
the same rights in the EEOC procedure as it does in the NGP.
D. This Court's Decision in Veterans Affairs
This Court has squarely addressed the scope of the term grievance as used in
§ 7114 of the Statute and held that the term applies to statutory appeals as
well as grievances pursued under an NGP. Veterans Affairs, 3 F.3d at
1390-91. In Veterans Affairs, the Court found that witness interviews with
bargaining unit employees conducted by a representative of an employer
agency in connection with an MSPB appeal were formal discussions concerning
a "grievance" within the scope of § 7114(a)(2)(A).[15] 3 F.3d at 1390. In
so holding, the Court was "greatly persuaded" by the reasoning of the D.C.
Circuit in NTEU. Id. As discussed in section II.A. above, the court in
NTEU extensively analyzed the language of the Statute and held that the
statutory procedures for resolving employment complaints are procedures for
resolving "grievances."
Tinker AFB argues, however (Br. 41-44), that Veterans Affairs does not
control the instant case because that case concerned appeals to the MSPB,
not discrimination complaints filed with the EEOC. However, with regard to
the meaning of "grievance" in § 7114(a)(2)(A) of the Statute, there is no
relevant difference between MSPB procedures and EEOC procedures. That
section refers to "any grievance," which in turn is defined in § 7103(a)(9)
as "any complaint." Tinker AFB does not - and cannot -point to anything in
the Statute to explain why "any complaint" includes MSPB procedures, but
excludes EEOC procedures. In addition, many of Tinker AFB's claims made
about EEOC procedures apply equally to MSPB procedures. For example, both
processes are established and governed by statutes and regulations other
than the Statute and the Authority's regulations. See 42 U.S.C. §
2000e-16, 29 C.F.R. Pt. 1614 (EEOC); 5 U.S.C. § 7701-7703, 5 C.F.R. Pt. 1201
(MSPB). Further, Tinker AFB argues (Br. 44) that EEO complaints may raise
privacy issues; but discrimination matters, and thus the same type of
privacy issues, may arise in mixed-case appeals to the MSPB. See 5 U.S.C. §
7702.
Tinker AFB also incorrectly attributes significance (Br. 43-44) to the fact
that the Authority and the MSPB were established as a result of the Civil
Service Reform Act of 1978 and the EEOC was not. On the contrary, the
EEOC's specific role in processing federal sector complaints was established
concurrently with the passage of the Civil Service Reform Act.[16]
Moreover, in creating the MSPB and the Authority, Congress expressly
contemplated that these new agencies would interact with the EEOC. See 5
U.S.C. § 7702; 5 U.S.C. § 7121(d). As pertinent to § 7114(a)(2)(A) - which
provides for union attendance at formal discussions concerning grievances -
all three agencies address employees' work-related complaints.
Finally, nothing in Veterans Affairs indicates that, with respect to §
7114(a)(2)(A), this Court would approach EEOC appeals any differently than
those before the MSPB. Although the Veterans Affairs court distinguished
IRS, Fresno "on the facts," it in no way indicated that it found the legal
reasoning of IRS Fresno persuasive. 3 F.3d at 1391. To the contrary and as
noted above, this Court specifically endorsed the reasoning of the D.C.
Circuit in NTEU, where that court viewed its decision as conflicting with -
not being distinguishable from - IRS, Fresno. See NTEU, 774 F.2d at 1188
("To the extent [] the Ninth Circuit may have construed the term 'grievance'
to include only disputes governed by [an NGP], we must disagree[.]")
Further, to the extent this Court distinguished IRS, Fresno, it did so on
the basis of the anonymity requirements of the precomplaint processes at
issue in IRS, Fresno.[17] Veterans Affairs, 3 F.3d at 1391. No such
considerations are present in this case, which concerns formal
discrimination complaints.[18]
E. Tinker AFB's Arguments Concerning the Confidentiality of EEOC
Proceedings
Similarly unpersuasive are Tinker AFB's arguments that EEOC confidentiality
safeguards (Br. 35-41) and the Privacy Act are impediments to the union's
right to attend EEOC proceedings. Significantly, Tinker AFB has pointed to
no substantive law or regulation that prohibits union attendance or is
otherwise inconsistent with § 7114(a)(2)(A) of the Statute.[19] Instead,
Tinker AFB is saddled with the far weaker argument (see Br. 38) that the
EEOC's regulations do not explicitly provide for the presence of a union
representative at discussions between the employing agency and a
complainant. However, such regulatory silence is insufficient to extinguish
the union's right to attend provided in the Statute. See U.S. Immigration
and Naturalization Serv. v. FLRA, 4 F.3d 268, 272-73 (4th Cir. 1993)
(holding that the fact that MSPB regulations do not provide for official
(paid) time for union representatives at its proceedings does not preclude
such time where otherwise provided for in the Statute).
Contrary to Tinker AFB's assertion (Br. 45), there was no need for Congress
to "amend" Title VII of the Civil Rights Act to specifically permit union
representation at § 7114(a)(2)(A) sessions involving EEOC proceedings, just
as there was no need for Congress to amend the Inspector General Act to
specifically permit union representation at § 7114(a)(2)(B) sessions
involving Inspector General personnel, see generally NASA v. FLRA, 527 U.S.
229 (1999) (NASA).[20] In both instances, the Statute generally provides
for - and nothing in any other law precludes - union presence.
Further, with respect to the confidentiality of the EEOC process, Tinker AFB
raises these issues only in general or hypothetical terms. Tinker AFB does
not assert that such issues will arise in every case; indeed, none are
present here.[21] Rather than adopting a rule uniformly prohibiting union
attendance at such sessions, the better course is to permit the Authority to
balance individual and institutional interests when such issues actually
arise. The Authority has recently reaffirmed that where such conflicts are
raised they will be considered, but stated that such issues "are more
appropriately addressed in an actual case when squarely presented." Dover
AFB, 57 F.L.R.A. at 310 (citing Navegar, Inc. v. United States, 103 F.3d
994, 998 (D.C. Cir. 1997)). In short, Tinker AFB's speculative
confidentiality arguments cannot support a non-literal construction of §
7114 (a)(2)(A) that the Authority has refused to adopt. Cf. NASA, 527 U.S.
at 243-44 ("[C]onfidentiality concerns are not weighty enough to justify a
nontextual construction of § 7114(a)(2)(B) rejected by the Authority.").
CONCLUSION
The petition for review should be dismissed for lack of jurisdiction.
Assuming the Court has jurisdiction, the petition should be denied on the
merits. In either event, the Court should enforce the Authority's order.
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
March 11, 2002
STATEMENT REGARDING ORAL ARGUMENT
The Authority requests oral argument in this case. Although the
jurisdictional issues raised in this case by themselves may not merit oral
argument, the merits issues arise in a unique and complex statutory scheme
and the circuit courts have split on closely-related issues.
CERTIFICATION PURSUANT TO FRAP RULE 32
Pursuant to Federal Rule of Appellate Procedure 32, I certify that the
attached brief is proportionately spaced, utilizes 14-point serif type, and
contains 10, 817 words.
___________________________
James F. Blandford
March 11, 2002
IN THE UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
_______________________________
TINKER AIR FORCE BASE,
OKLAHOMA CITY AIR LOGISTICS CENTER,
OKLAHOMA CITY, OKLAHOMA,
Petitioner
v. No. 01-9528
FEDERAL LABOR RELATIONS AUTHORITY,
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 916,
Intervenor
_______________________________
SERVICE LIST
I certify that copies of the Brief for the Federal Labor Relations
Authority and the Cross-Application for Enforcement of an Order of the
Federal Labor Relations Authority have been served this day, by mail, upon
the following:
Robert D. McCallum, Jr. Mark D. Roth, General Counsel
William Kanter Charles A. Hobbie, Deputy General Counsel
Sandra Wien Simon AFGE, AFL-CIO
Attorneys, Appellate Staff 80 F Street, N.W.
Civil Division, Room 9146 Washington, D.C. 20001
601 D Street, N.W.
Washington, D.C. 20530-0001
Kevin M. Grile, Assistant General Counsel
AFGE, AFL-CIO
300 South Ashland Avenue
Suite 302
Chicago, IL 60607
Jennifer Baker
Paralegal Specialist
March 11, 2002
ADDENDUM A
1. 5 U.S.C. § 7103(a)(9) A-1
2. 5 U.S.C. § 7105(a)(2) (G) A-2
3. 5 U.S.C. § 7114 A-3
4. 5 U.S.C. § 7116(a)(1), (8) A-5
5. 5 U.S.C. § 7119 A-6
6. 5 U.S.C. § 7121 A-8
7. 5 U.S.C. § 7123(b) A-11
8. 5 U.S.C. § 7702 A-12
9. 5 U.S.C. § 552a A-16
10. 29 U.S.C. § 160(e) A-24
11. 42 U.S.C. § 2000e-16(a), (c) A-25
12. 5 C.F.R. § 2423.34 A-26
13. 5 C.F.R. § 2423.41(a) A-27
14. 5 C.F.R. § 2429.24 A-28
15. 29 C.F.R. § 102.46 (b) (1978) A-30
16. 29 C.F.R. § 1614.108 A-31
§ 7103. Definitions; application
(a) For the purpose of this chapter-
* * * * * * *
(9) "grievance" means any complaint-
(A) by any employee concerning any matter relating to the employment of the
employee;
(B) by any labor organization concerning any matter relating to the
employment of any employee; or
(C) by any employee, labor organization, or agency concerning-
(i) the effect or interpretation, or a claim of breach, of a collective
bargaining agreement; or
(ii) any claimed violation, misinterpretation, or misapplication of any
law, rule, or regulation affecting conditions of employment;
* * * * * * *
§ 7105. Powers and duties of the Authority
* * * * * * *
(a)(2)The Authority shall, to the extent provided in this chapter and in
accordance with regulations prescribed by the Authority-
* * * * * * *
(G) conduct hearings and resolve complaints of unfair labor practices
under section 7118 of this title;
* * * * * * *
§ 7114. Representation rights and duties
(a)(1) 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, and negotiate collective bargaining agreements
covering, 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.
(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; or
(B) any examination of an employee in the unit by a representative of the
agency in connection with an investigation if-
(i) the employee reasonably believes that the examination may result in
disciplinary action against the employee; and
(ii) the employee requests representation.
(3) Each agency shall annually inform its employees of their rights under
paragraph (2)(B) of this subsection.
(4) Any agency and any exclusive representative in any appropriate unit in
the agency, through appropriate representatives, shall meet and negotiate in
good faith for the purposes of arriving at a collective bargaining
agreement. In addition, the agency and the exclusive representative may
determine appropriate techniques, consistent with the provisions of section
7119 of this title, to assist in any negotiation.
(5) The rights of an exclusive representative under the provisions of this
subsection shall not be construed to preclude an employee from-
(A) being represented by an attorney or other representative, other than the
exclusive representative, of the employee's own choosing in any grievance or
appeal action; or
(B) exercising grievance or appellate rights established by law, rule, or
regulation;
except in the case of grievance or appeal procedures negotiated under this
chapter.
(b) The duty of an agency and an exclusive representative to negotiate in
good faith under subsection (a) of this section shall include the
obligation-
(1) to approach the negotiations with a sincere resolve to reach a
collective bargaining agreement;
(2) to be represented at the negotiations by duly authorized representatives
prepared to discuss and negotiate on any condition of employment;
(3) to meet at reasonable times and convenient places as frequently as may
be necessary, and to avoid unnecessary delays;
(4) in the case of an agency, 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; and
(5) if agreement is reached, to execute on the request of any party to the
negotiation a written document embodying the agreed terms, and to take such
steps as are necessary to implement such agreement.
(c)(1) An agreement between any agency and an exclusive representative shall
be subject to approval by the head of the agency.
(2) The head of the agency shall approve the agreement within 30 days from
the date the agreement is executed if the agreement is in accordance with
the provisions of this chapter and any other applicable law, rule, or
regulation (unless the agency has granted an exception to the provision).
(3) If the head of the agency does not approve or disapprove the agreement
within the 30-day period, the agreement shall take effect and shall be
binding on the agency and the exclusive representative subject to the
provisions of this chapter and any other applicable law, rule, or
regulation.
(4) A local agreement subject to a national or other controlling agreement
at a higher level shall be approved under the procedures of the controlling
agreement or, if none, under regulations prescribed by the agency.
§ 7116. Unfair labor practices
(a) For the purpose of this chapter, it shall be an unfair labor practice
for an agency-
(1) to interfere with, restrain, or coerce any employee in the exercise by
the employee of any right under this chapter;
* * * * * * *
(8) to otherwise fail or refuse to comply with any provision of this chapter.
* * * * * * *
§ 7119. Negotiation impasses; Federal Service Impasses Panel
(a) The Federal Mediation and Conciliation Service shall provide services
and assistance to agencies and exclusive representatives in the resolution
of negotiation impasses. The Service shall determine under what
circumstances and in what matter it shall provide services and assistance.
(b) If voluntary arrangements, including the services of the Federal
Mediation and Conciliation Service or any other third-party mediation, fail
to resolve a negotiation impasse-
(1) either party may request the Federal Service Impasses Panel to consider
the matter, or
(2) the parties may agree to adopt a procedure for binding arbitration of
the negotiation impasses, but only if the procedure is approved by the
Panel.
(c)(1) The Federal Service Impasses Panel is an entity within the Authority,
the function of which is to provide assistance in resolving negotiation
impasses between agencies and exclusive representatives.
(2) The Panel shall be composed of a Chairman and at least six other
members, who shall be appointed by the President, solely on the basis of
fitness to perform duties and functions involved, from among individuals who
are familiar with Government operations and knowledgeable in labor-
management relations.
(3) Of the original members of the Panel, 2 members shall be appointed for a
term of 1 year, 2 members shall be appointed for a term of 3 years, and the
Chairman and the remaining members shall be appointed for a term of 5 years.
Thereafter each member shall be appointed for a term of 5 years, except that
an individual chosen to fill a vacancy shall be appointed for the unexpired
term of the member replaced. Any member of the Panel may be removed by the
President.
(4) The Panel may appoint an Executive Director and any other individuals it
may from time to time find necessary for the proper performance of its
duties. Each member of the Panel who is not an employee (as defined in
section 2105 of this title) is entitled to pay at a rate equal to the daily
equivalent of the maximum annual rate of basic pay then currently paid under
the General Schedule for each day he is engaged in the performance of
official business of the Panel, including travel time, and is entitled to
travel expenses as provided under section 5703 of this title.
(5)(A) The Panel or its designee shall promptly investigate any impasse
presented to it under subsection (b) of this section. The Panel shall
consider the impasse and shall either-
(i) recommend to the parties procedures for the resolution of the impasse;
or
(ii) assist the parties in resolving the impasse through whatever methods
and procedures, including factfinding and recommendations, it may consider
appropriate to accomplish the purpose of this section.
(B) If the parties do not arrive at a settlement after assistance by the
Panel under subparagraph (A) of this paragraph, the Panel may-
(i) hold hearings;
(ii) administer oaths, take the testimony or deposition of any person under
oath, and issue subpoenas as provided in section 7132 of this title; and
(iii) take whatever action is necessary and not inconsistent with this
chapter to resolve the impasse.
(C) Notice of any final action of the Panel under this section shall be
promptly served upon the parties, and the action shall be binding on such
parties during the term of the agreement, unless the parties agree
otherwise.
§ 7121. Grievance procedures
(a)(1) Except as provided in paragraph (2) of this subsection, any
collective bargaining agreement shall provide procedures for the settlement
of grievances, including questions of arbitrability. Except as provided in
subsections (d), (e) and (g) of this section, the procedures shall be the
exclusive administrative procedures for resolving grievances which fall
within its coverage.
(2) Any collective bargaining agreement may exclude any matter from the
application of the grievance procedures which are provided for in the
agreement.
(b)(1) Any negotiated grievance procedure referred to in subsection (a) of
this section shall-
(A) be fair and simple,
(B) provide for expeditious processing, and
(C) include procedures that-
(i) assure an exclusive representative the right, in its own behalf or on
behalf of any employee in the unit represented by the exclusive
representative, to present and process grievances;
(ii) assure such an employee the right to present a grievance on the
employee's own behalf, and assure the exclusive representative the right to
be present during the grievance proceeding; and
(iii) provide that any grievance not satisfactorily settled under the
negotiated grievance procedure shall be subject to binding arbitration which
may be invoked by either the exclusive representative or the agency.
(2)(A) The provisions of a negotiated grievance procedure providing for
binding arbitration in accordance with paragraph (1)(C)(iii) shall, if or to
the extent that an alleged prohibited personnel practice is involved, allow
the arbitrator to order-
(i) a stay of any personnel action in a manner similar to the manner
described in section 1221(c) with respect to the Merit Systems Protection
Board; and
(ii) the taking, by an agency, of any disciplinary action identified under
section 1215(a)(3) that is otherwise within the authority of such agency to
take.
(B) Any employee who is the subject of any disciplinary action ordered under
subparagraph (A)(ii) may appeal such action to the same extent and in the
same manner as if the agency had taken the disciplinary action absent
arbitration.
(c) The preceding subsections of this section shall not apply with respect
to any grievance concerning-
(1) any claimed violation of subchapter III of chapter 73 of this title
(relating to prohibited political activities);
(2) retirement, life insurance, or health insurance;
(3) a suspension or removal under section 7532 of this title;
(4) any examination, certification, or appointment; or
(5) the classification of any position which does not result in the
reduction in grade or pay of an employee.
(d) 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. 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. 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.
(e)(1) Matters covered under sections 4303 and 7512 of this title which also
fall within the coverage of the negotiated grievance procedure may, in the
discretion of the aggrieved employee, be raised either under the appellate
procedures of section 7701 of this title or under the negotiated grievance
procedure, but not both. Similar matters which arise under other personnel
systems applicable to employees covered by this chapter may, in the
discretion of the aggrieved employee, be raised either under the appellate
procedures, if any, applicable to those matters, or under the negotiated
grievance procedure, but not both. An employee shall be deemed to have
exercised his option under this subsection to raise a matter either under
the applicable appellate procedures or under the negotiated grievance
procedure at such time as the employee timely files a notice of appeal under
the applicable appellate procedures or timely files a grievance in writing
in accordance with the provisions of the parties' negotiated grievance
procedure, whichever event occurs first.
(2) In matters covered under sections 4303 and 7512 of this title which have
been raised under the negotiated grievance procedure in accordance with this
section, an arbitrator shall be governed by section 7701(c)(1) of this
title, as applicable.
(f) In matters covered under sections 4303 and 7512 of this title which have
been raised under the negotiated grievance procedure in accordance with this
section, section 7703 of this title pertaining to judicial review shall
apply to the award of an arbitrator in the same manner and under the same
conditions as if the matter had been decided by the Board. In matters
similar to those covered under sections 4303 and 7512 of this title which
arise under other personnel systems and which an aggrieved employee has
raised under the negotiated grievance procedure, judicial review of an
arbitrator's award may be obtained in the same manner and on the same basis
as could be obtained of a final decision in such matters raised under
applicable appellate procedures.
(g)(1) This subsection applies with respect to a prohibited personnel
practice other than a prohibited personnel practice to which subsection (d)
applies.
(2) An aggrieved employee affected by a prohibited personnel practice
described in paragraph (1) may elect not more than one of the remedies
described in paragraph (3) with respect thereto. For purposes of the
preceding sentence, a determination as to whether a particular remedy has
been elected shall be made as set forth under paragraph (4).
(3) The remedies described in this paragraph are as follows:
(A) An appeal to the Merit Systems Protection Board under section 7701.
(B) A negotiated grievance procedure under this section.
(C) Procedures for seeking corrective action under subchapters II and III of
chapter 12.
(4) For the purpose of this subsection, a person shall be considered to have
elected-
(A) the remedy described in paragraph (3)(A) if such person has timely filed
a notice of appeal under the applicable appellate procedures;
(B) the remedy described in paragraph (3)(B) if such person has timely filed
a grievance in writing, in accordance with the provisions of the parties'
negotiated procedure; or
(C) the remedy described in paragraph (3)(C) if such person has sought
corrective action from the Office of Special Counsel by making an allegation
under section 1214(a)(1).
(h) Settlements and awards under this chapter shall be subject to the
limitations in section 5596(b)(4) of this title.
§ 7123. Judicial review; enforcement
* * * * * * *
(b) The Authority may petition any appropriate United States court of
appeals for the enforcement of any order of the Authority and for
appropriate temporary relief or restraining order.
* * * * * * *
§ 7702. Actions involving discrimination
(a)(1) Notwithstanding any other provision of law, and except as provided
in paragraph (2) of this subsection, in the case of any employee or
applicant for employment who -
(A) has been affected by an action which the employee or applicant may
appeal to the Merit Systems Protection Board, and
(B) alleges that a basis for the action was discrimination prohibited by
-
(i) section 717 of the Civil Rights Act of 1964 (42 U.S.C. 2000e-16),
(ii) section 6(d) of the Fair Labor Standards Act of 1938 (29 U.S.C.
206(d)),
(iii) section 501 of the Rehabilitation Act of 1973 (29 U.S.C. 791),
(iv) sections 12 and 15 of the Age Discrimination in Employment Act of
1967 (29 U.S.C. 631, 633a), or
(v) any rule, regulation, or policy directive prescribed under any
provision of law described in clauses (i) through
(iv) of this subparagraph, the Board shall, within 120 days of the
filing of the appeal, decide both the issue of discrimination and the
appealable action in accordance with the Board's appellate procedures
under section 7701 of this title and this section.
(2) In any matter before an agency which involves -
(A) any action described in paragraph (1)(A) of this subsection; and
(B) any issue of discrimination prohibited under any provision of law
described in paragraph (1)(B) of this subsection; the agency shall
resolve such matter within 120 days. The decision of the agency in any
such matter shall be a judicially reviewable action unless the employee
appeals the matter to the Board under paragraph (1) of this subsection.
(3) Any decision of the Board under paragraph (1) of this subsection shall
be a judicially reviewable action as of -
(A) the date of issuance of the decision if the employee or applicant
does not file a petition with the Equal Employment Opportunity
Commission under subsection (b)(1) of this section, or
(B) the date the Commission determines not to consider the decision
under subsection (b)(2) of this section.
(b)(1) An employee or applicant may, within 30 days after notice of the
decision of the Board under subsection (a)(1) of this section, petition
the Commission to consider the decision.
(2) The Commission shall, within 30 days after the date of the petition,
determine whether to consider the decision. A determination of the
Commission not to consider the decision may not be used as evidence with
respect to any issue of discrimination in any judicial proceeding
concerning that issue.
(3) If the Commission makes a determination to consider the decision, the
Commission shall, within 60 days after the date of the determination,
consider the entire record of the proceedings of the Board and, on the
basis of the evidentiary record before the Board, as supplemented under
paragraph (4) of this subsection,
either -
(A) concur in the decision of the Board; or
(B) issue in writing another decision which differs from the decision of
the Board to the extent that the Commission finds that, as a matter of
law -
(i) the decision of the Board constitutes an incorrect interpretation
of any provision of any law, rule, regulation, or policy directive
referred to in subsection (a)(1)(B) of this section, or
(ii) the decision involving such provision is not supported by the
evidence in the record as a whole.
(4) In considering any decision of the Board under this subsection, the
Commission may refer the case to the Board, or provide on its own, for the
taking (within such period as permits the Commission to make a decision
within the 60-day period prescribed under this subsection) of additional
evidence to the extent it considers necessary to supplement the record.
(5)(A) If the Commission concurs pursuant to paragraph (3)(A) of this
subsection in the decision of the Board, the decision of the Board shall
be a judicially reviewable action.
(B) If the Commission issues any decision under paragraph (3)(B) of this
subsection, the Commission shall immediately refer the matter to the
Board.
(c) Within 30 days after receipt by the Board of the decision of the
Commission under subsection (b)(5)(B) of this section, the
Board shall consider the decision and -
(1) concur and adopt in whole the decision of the Commission;
or
(2) to the extent that the Board finds that, as a matter of
law, (A) the Commission decision constitutes an incorrect
interpretation of any provision of any civil service law, rule, regulation
or policy directive, or (B) the Commission decision involving such
provision is not supported by the evidence in the record as a whole -
(i) reaffirm the initial decision of the Board; or
(ii) reaffirm the initial decision of the Board with such revisions as
it determines appropriate. If the Board takes the action provided
under paragraph (1), the decision of the Board shall be a judicially
reviewable action.
(d)(1) If the Board takes any action under subsection (c)(2) of this
section, the matter shall be immediately certified to a special panel
described in paragraph (6) of this subsection. Upon certification, the
Board shall, within 5 days (excluding Saturdays, Sundays, and holidays),
transmit to the special panel the administrative record in the proceeding,
including -
(A) the factual record compiled under this section,
(B) the decisions issued by the Board and the Commission under this
section, and
(C) any transcript of oral arguments made, or legal briefs filed, before
the Board or the Commission.
(2)(A) The special panel shall, within 45 days after a matter has been
certified to it, review the administrative record transmitted to it and,
on the basis of the record, decide the issues in dispute and issue a final
decision which shall be a judicially reviewable action.
(B) The special panel shall give due deference to the respective expertise
of the Board and Commission in making its decision.
(3) The special panel shall refer its decision under paragraph (2) of this
subsection to the Board and the Board shall order any agency to take any
action appropriate to carry out the decision.
(4) The special panel shall permit the employee or applicant who brought
the complaint and the employing agency to appear before the panel to
present oral arguments and to present written arguments with respect to
the matter.
(5) Upon application by the employee or applicant, the Commission may
issue such interim relief as it determines appropriate to mitigate any
exceptional hardship the employee or applicant might otherwise incur as a
result of the certification of any matter under this subsection, except
that the Commission may not stay, or order any agency to review on an
interim basis, the action referred to in subsection (a)(1) of this
section.
(6)(A) Each time the Board takes any action under subsection
(c)(2) of this section, a special panel shall be convened which shall
consist of -
(i) an individual appointed by the President, by and with the advice and
consent of the Senate, to serve for a term of 6 years as chairman of the
special panel each time it is convened;
(ii) one member of the Board designated by the Chairman of the Board
each time a panel is convened; and
(iii) one member of the Commission designated by the Chairman of the
Commission each time a panel is convened. The chairman of the special
panel may be removed by the President only for inefficiency, neglect of
duty, or malfeasance in office.
(B) The chairman is entitled to pay at a rate equal to the maximum annual
rate of basic pay payable under the General Schedule for each day he is
engaged in the performance of official business on the work of the special
panel.
(C) The Board and the Commission shall provide such administrative
assistance to the special panel as may be necessary and, to the extent
practicable, shall equally divide the costs of providing the
administrative assistance.
(e)(1) Notwithstanding any other provision of law, if at any time after -
(A) the 120th day following the filing of any matter described in
subsection (a)(2) of this section with an agency, there is not
judicially reviewable action under this section or an appeal under
paragraph (2) of this subsection;
(B) the 120th day following the filing of an appeal with the Board under
subsection (a)(1) of this section, there is no judicially reviewable
action (unless such action is not as the result of the filing of a
petition by the employee under subsection (b)(1) of this section); or
(C) the 180th day following the filing of a petition with the Equal
Employment Opportunity Commission under subsection (b)(1) of this
section, there is no final agency action under subsection (b), (c), or
(d) of this section; an employee shall be entitled to file a civil
action to the same extent and in the same manner as provided in section
717(c) of the Civil Rights Act of 1964 (42 U.S.C. 2000e-16(c)), section
15(c) of the Age Discrimination in Employment Act of 1967 (29 U.S.C.
633a(c)), or section 16(b) of the Fair Labor Standards Act of 1938 (29
U.S.C. 216(b)).
(2) If, at any time after the 120th day following the filing of any matter
described in subsection (a)(2) of this section with an agency, there is no
judicially reviewable action, the employee may appeal the matter to the
Board under subsection (a)(1) of this section.
(3) Nothing in this section shall be construed to affect the right to
trial de novo under any provision of law described in subsection (a)(1) of
this section after a judicially reviewable action, including the decision
of an agency under subsection (a)(2) of this section.
(f) In any case in which an employee is required to file any action,
appeal, or petition under this section and the employee timely files the
action, appeal, or petition with an agency other than the agency with
which the action, appeal, or petition is to be filed, the employee shall
be treated as having timely filed the action, appeal, or petition as of
the date it is filed with the proper agency.
§ 552. Public information; agency rules, opinions, orders, records, and
proceedings
(a) Each agency shall make available to the public information as follows:
(1) Each agency shall separately state and currently publish in the
Federal Register for the guidance of the public -
(A) descriptions of its central and field organization and the
established places at which, the employees (and in the case of a
uniformed service, the members) from whom, and the methods whereby, the
public may obtain information, make submittals or requests, or obtain
decisions;
(B) statements of the general course and method by which its functions
are channeled and determined, including the nature and requirements of
all formal and informal procedures available;
(C) rules of procedure, descriptions of forms available or the places at
which forms may be obtained, and instructions as to the scope and
contents of all papers, reports, or examinations;
(D) substantive rules of general applicability adopted as authorized by
law, and statements of general policy or interpretations of general
applicability formulated and adopted by the agency; and
(E) each amendment, revision, or repeal of the foregoing. Except to the
extent that a person has actual and timely notice of the terms thereof,
a person may not in any manner be required to resort to, or be adversely
affected by, a matter required to be published in the Federal Register
and not so published. For the purpose of this paragraph, matter
reasonably available to the class of persons affected thereby is deemed
published in the Federal Register when incorporated by reference therein
with the approval of the Director of the Federal Register.
(2) Each agency, in accordance with published rules, shall make available
for public inspection and copying -
(A) final opinions, including concurring and dissenting opinions, as
well as orders, made in the adjudication of cases;
(B) those statements of policy and interpretations which have been
adopted by the agency and are not published in the Federal Register;
(C) administrative staff manuals and instructions to staff that affect a
member of the public;
(D) copies of all records, regardless of form or format, which have been
released to any person under paragraph (3) and which, because of the
nature of their subject matter, the agency determines have become or are
likely to become the subject of subsequent requests for substantially
the same records; and
(E) a general index of the records referred to under subparagraph (D);
unless the materials are promptly published and copies offered for
sale. For records created on or after November 1, 1996, within one year
after such date, each agency shall make such records available,
including by computer telecommunications or, if computer
telecommunications means have not been established by the agency, by
other electronic means. To the extent required to prevent a clearly
unwarranted invasion of personal privacy, an agency may delete
identifying details when it makes available or publishes an opinion,
statement of policy, interpretation, staff manual, instruction, or
copies of records referred to in subparagraph (D).
However, in each case the justification for the deletion shall be explained
fully in writing, and the extent of such deletion shall be indicated on the
portion of the record which is made available or published, unless including
that indication would harm an interest protected by the exemption in
subsection (b) under which the deletion is made. If technically feasible,
the extent of the deletion shall be indicated at the place in the record
where the deletion was made. Each agency shall also maintain and make
available for public inspection and copying current indexes providing
identifying information for the public as to any matter issued, adopted, or
promulgated after July 4, 1967, and required by this paragraph to be made
available or published. Each agency shall promptly publish, quarterly or
more frequently, and distribute (by sale or otherwise) copies of each index
or supplements thereto unless it determines by order published in the
Federal Register that the publication would be unnecessary and
impracticable, in which case the agency shall nonetheless provide copies of
such index on request at a cost not to exceed the direct cost of
duplication. Each agency shall make the index referred to in subparagraph
(E) available by computer telecommunications by December 31, 1999. A final
order, opinion, statement of policy, interpretation, or staff manual or
instruction that affects a member of the public may be relied on, used, or
cited as precedent by an agency against a party other than an agency only if
-
(i) it has been indexed and either made available or published as
provided by this paragraph; or
(ii) the party has actual and timely notice of the terms thereof.
(3)(A) Except with respect to the records made available under paragraphs
(1) and (2) of this subsection, each agency, upon any request for records
which (i) reasonably describes such records and
(ii) is made in accordance with published rules stating the time, place,
fees (if any), and procedures to be followed, shall make the records
promptly available to any person.
(B) In making any record available to a person under this paragraph, an
agency shall provide the record in any form or format requested by the
person if the record is readily reproducible by the agency in that form or
format. Each agency shall make reasonable efforts to maintain its records
in forms or formats that are reproducible for purposes of this section.
(C) In responding under this paragraph to a request for records, an agency
shall make reasonable efforts to search for the records in electronic form
or format, except when such efforts would significantly interfere with the
operation of the agency's automated information system.
(D) For purposes of this paragraph, the term ''search'' means to review,
manually or by automated means, agency records for the purpose of locating
those records which are responsive to a request.
(4)(A)(i) In order to carry out the provisions of this section, each
agency shall promulgate regulations, pursuant to notice and receipt of
public comment, specifying the schedule of fees applicable to the
processing of requests under this section and establishing procedures and
guidelines for determining when such fees should be waived or reduced.
Such schedule shall conform to the guidelines which shall be promulgated,
pursuant to notice and receipt of public comment, by the Director of the
Office of Management and Budget and which shall provide for a uniform
schedule of fees for all agencies.
(ii) Such agency regulations shall provide that -
(I) fees shall be limited to reasonable standard charges for document
search, duplication, and review, when records are requested for
commercial use;
(II) fees shall be limited to reasonable standard charges for
document duplication when records are not sought for commercial use and
the request is made by an educational or noncommercial scientific
institution, whose purpose is scholarly or scientific research; or a
representative of the news media; and
(III) for any request not described in (I) or (II), fees shall be
limited to reasonable standard charges for document search and
duplication.
(iii) Documents shall be furnished without any charge or at a charge
reduced below the fees established under clause (ii) if disclosure of the
information is in the public interest because it is likely to contribute
significantly to public understanding of the operations or activities of
the government and is not primarily in the commercial interest of the
requester.
(iv) Fee schedules shall provide for the recovery of only the direct costs
of search, duplication, or review. Review costs shall include only the
direct costs incurred during the initial examination of a document for the
purposes of determining whether the documents must be disclosed under this
section and for the purposes of withholding any portions exempt from
disclosure under this section. Review costs may not include any costs
incurred in resolving issues of law or policy that may be raised in the
course of processing a request under this section. No fee may be charged
by any agency under this section -
(I) if the costs of routine collection and processing of the fee are
likely to equal or exceed the amount of the fee; or
(II) for any request described in clause (ii) (II) or (III) of this
subparagraph for the first two hours of search time or for the first one
hundred pages of duplication.
(v) No agency may require advance payment of any fee unless the requester
has previously failed to pay fees in a timely fashion, or the agency has
determined that the fee will exceed $250.
(vi) Nothing in this subparagraph shall supersede fees chargeable under a
statute specifically providing for setting the level of fees for
particular types of records.
(vii) In any action by a requester regarding the waiver of fees under this
section, the court shall determine the matter de novo:
Provided, That the court's review of the matter shall be limited to the
record before the agency.
(B) On complaint, the district court of the United States in the district
in which the complainant resides, or has his principal place of business,
or in which the agency records are situated, or in the District of
Columbia, has jurisdiction to enjoin the agency from withholding agency
records and to order the production of any agency records improperly
withheld from the complainant. In such a case the court shall determine
the matter de novo, and may examine the contents of such agency records in
camera to determine whether such records or any part thereof shall be
withheld under any of the exemptions set forth in subsection (b) of this
section, and the burden is on the agency to sustain its action. In
addition to any other matters to which a court accords substantial weight,
a court shall accord substantial weight to an affidavit of an agency
concerning the agency's determination as to technical feasibility under
paragraph (2)(C) and subsection (b) and reproducibility under paragraph
(3)(B).
(C) Notwithstanding any other provision of law, the defendant shall serve
an answer or otherwise plead to any complaint made under this subsection
within thirty days after service upon the defendant of the pleading in
which such complaint is made, unless the court otherwise directs for good
cause shown.
((D) Repealed. Pub. L. 98-620, title IV, Sec. 402(2), Nov. 8, 1984, 98
Stat. 3357.)
(E) The court may assess against the United States reasonable attorney
fees and other litigation costs reasonably incurred in any case under this
section in which the complainant has substantially prevailed.
(F) Whenever the court orders the production of any agency records
improperly withheld from the complainant and assesses against the United
States reasonable attorney fees and other litigation costs, and the court
additionally issues a written finding that the circumstances surrounding
the withholding raise questions whether agency personnel acted arbitrarily
or capriciously with respect to the withholding, the Special Counsel shall
promptly initiate a proceeding to determine whether disciplinary action is
warranted against the officer or employee who was primarily responsible
for the withholding. The Special Counsel, after investigation and
consideration of the evidence submitted, shall submit his findings and
recommendations to the administrative authority of the agency concerned
and shall send copies of the findings and recommendations to the officer
or employee or his representative. The administrative authority shall
take the corrective action that the Special Counsel recommends.
(G) In the event of noncompliance with the order of the court, the
district court may punish for contempt the responsible employee, and in
the case of a uniformed service, the responsible member.
(5) Each agency having more than one member shall maintain and make
available for public inspection a record of the final votes of each member
in every agency proceeding.
(6)(A) Each agency, upon any request for records made under paragraph (1),
(2), or (3) of this subsection, shall -
(i) determine within 20 days (excepting Saturdays, Sundays, and legal
public holidays) after the receipt of any such request whether to comply
with such request and shall immediately notify the person making such
request of such determination and the reasons therefor, and of the right
of such person to appeal to the head of the agency any adverse
determination; and
(ii) make a determination with respect to any appeal within twenty days
(excepting Saturdays, Sundays, and legal public holidays) after the
receipt of such appeal. If on appeal the denial of the request for
records is in whole or in part upheld, the agency shall notify the
person making such request of the provisions for judicial review of
that determination under paragraph (4) of this subsection.
(B)(i) In unusual circumstances as specified in this subparagraph, the
time limits prescribed in either clause (i) or clause (ii) of subparagraph
(A) may be extended by written notice to the person making such request
setting forth the unusual circumstances for such extension and the date on
which a determination is expected to be dispatched. No such notice shall
specify a date that would result in an extension for more than ten working
days, except as provided in clause (ii) of this subparagraph.
(ii) With respect to a request for which a written notice under clause (i)
extends the time limits prescribed under clause (i) of subparagraph (A),
the agency shall notify the person making the request if the request
cannot be processed within the time limit specified in that clause and
shall provide the person an opportunity to limit the scope of the request
so that it may be processed within that time limit or an opportunity to
arrange with the agency an alternative time frame for processing the
request or a modified request. Refusal by the person to reasonably modify
the request or arrange such an alternative time frame shall be considered
as a factor in determining whether exceptional circumstances exist for
purposes of subparagraph (C).
(iii) As used in this subparagraph, ''unusual circumstances'' means, but
only to the extent reasonably necessary to the proper processing of the
particular requests -
(I) the need to search for and collect the requested records from field
facilities or other establishments that are separate from the office
processing the request;
(II) the need to search for, collect, and appropriately examine a
voluminous amount of separate and distinct records which are demanded in
a single request; or
(III) the need for consultation, which shall be conducted with all
practicable speed, with another agency having a substantial interest in
the determination of the request or among two or more components of the
agency having substantial subject-matter interest therein.
(iv) Each agency may promulgate regulations, pursuant to notice and
receipt of public comment, providing for the aggregation of certain
requests by the same requestor, or by a group of requestors acting in
concert, if the agency reasonably believes that such requests actually
constitute a single request, which would otherwise satisfy the unusual
circumstances specified in this subparagraph, and the requests involve
clearly related matters. Multiple requests involving unrelated matters
shall not be aggregated.
(C)(i) Any person making a request to any agency for records under
paragraph (1), (2), or (3) of this subsection shall be deemed to have
exhausted his administrative remedies with respect to such request if the
agency fails to comply with the applicable time limit provisions of this
paragraph. If the Government can show exceptional circumstances exist and
that the agency is exercising due diligence in responding to the request,
the court may retain jurisdiction and allow the agency additional time to
complete its review of the records. Upon any determination by an agency
to comply with a request for records, the records shall be made promptly
available to such person making such request. Any notification of denial
of any request for records under this subsection shall set forth the names
and titles or positions of each person responsible for the denial of such
request.
(ii) For purposes of this subparagraph, the term ''exceptional
circumstances'' does not include a delay that results from a predictable
agency workload of requests under this section, unless the agency
demonstrates reasonable progress in reducing its backlog of pending
requests.
(iii) Refusal by a person to reasonably modify the scope of a request or
arrange an alternative time frame for processing a request (or a modified
request) under clause (ii) after being given an opportunity to do so by
the agency to whom the person made the request shall be considered as a
factor in determining whether exceptional circumstances exist for purposes
of this subparagraph.
(D)(i) Each agency may promulgate regulations, pursuant to notice and
receipt of public comment, providing for multitrack processing of
requests for records based on the amount of work or time (or both)
involved in processing requests.
(ii) Regulations under this subparagraph may provide a person making a
request that does not qualify for the fastest multitrack processing an
opportunity to limit the scope of the request in order to qualify for
faster processing.
(iii) This subparagraph shall not be considered to affect the requirement
under subparagraph (C) to exercise due diligence.
(E)(i) Each agency shall promulgate regulations, pursuant to notice and
receipt of public comment, providing for expedited processing of requests
for records -
(I) in cases in which the person requesting the records demonstrates a
compelling need; and
(II) in other cases determined by the agency.
(ii) Notwithstanding clause (i), regulations under this subparagraph must
ensure -
(I) that a determination of whether to provide expedited processing
shall be made, and notice of the determination shall be provided to the
person making the request, within 10 days after the date of the request;
and
(II) expeditious consideration of administrative appeals of such
determinations of whether to provide expedited processing.
(iii) An agency shall process as soon as practicable any request for
records to which the agency has granted expedited processing under this
subparagraph. Agency action to deny or affirm denial of a request for
expedited processing pursuant to this subparagraph, and failure by an
agency to respond in a timely manner to such a request shall be subject to
judicial review under paragraph (4), except that the judicial review shall
be based on the record before the agency at the time of the determination.
(iv) A district court of the United States shall not have jurisdiction to
review an agency denial of expedited processing of a request for records
after the agency has provided a complete response to the request.
(v) For purposes of this subparagraph, the term ''compelling need'' means
-
(I) that a failure to obtain requested records on an expedited basis
under this paragraph could reasonably be expected to pose an imminent
threat to the life or physical safety of an individual; or
(II) with respect to a request made by a person primarily engaged in
disseminating information, urgency to inform the public concerning
actual or alleged Federal Government activity.
(vi) A demonstration of a compelling need by a person making a request for
expedited processing shall be made by a statement certified by such person
to be true and correct to the best of such person's knowledge and belief.
(F) In denying a request for records, in whole or in part, an agency shall
make a reasonable effort to estimate the volume of any requested matter
the provision of which is denied, and shall provide any such estimate to
the person making the request, unless providing such estimate would harm
an interest protected by the exemption in subsection (b) pursuant to which
the denial is made.
§160. Prevention of unfair labor practices
* * * * * * *
(e) Petition to court for enforcement of order; proceedings; review of judgment
The Board shall have power to petition any court of appeals of the United
States, or if all the courts of appeals to which application may be made are in
vacation, any district court of the United States, within any circuit or
district, respectively, wherein the unfair labor practice in question occurred
or wherein such person resides or transacts business, for the enforcement of
such order and for appropriate temporary relief or restraining order, and shall
file in the court the record in the proceedings, as provided in section 2112 of
title 28. Upon the filing of such petition, the court shall cause notice thereof
to be served upon such person, and thereupon shall have jurisdiction of the
proceeding and of the question determined therein, and shall have power to grant
such temporary relief or restraining order as it deems just and proper, and to
make and enter a decree enforcing, modifying and enforcing as so modified, or
setting aside in whole or in part the order of the Board. No objection that has
not been urged before the Board, its member, agent, or agency, shall be
considered by the court, unless the failure or neglect to urge such objection
shall be excused because of extraordinary circumstances. The findings of the
Board with respect to questions of fact if supported by substantial evidence on
the record considered as a whole shall be conclusive. If either party shall
apply to the court for leave to adduce additional evidence and shall show to the
satisfaction of the court that such additional evidence is material and that
there were reasonable grounds for the failure to adduce such evidence in the
hearing before the Board, its member, agent, or agency, the court may order such
additional evidence to be taken before the Board, its member, agent, or agency,
and to be made a part of the record. The Board may modify its findings as to the
facts, or make new findings by reason of additional evidence so taken and filed,
and it shall file such modified or new findings, which findings with respect to
questions of fact if supported by substantial evidence on the record considered
as a whole shall be conclusive, and shall file its recommendations, if any, for
the modification or setting aside of its original order. Upon the filing of the
record with it the jurisdiction of the court shall be exclusive and its judgment
and decree shall be final, except that the same shall be subject to review by
the appropriate United States court of appeals if application was made to the
district court as hereinabove provided, and by the Supreme Court of the United
States upon writ of certiorari or certification as provided in section 1254 of
title 28.
* * * * * * *
§ 2000e-16. Employment by Federal Government
(a) Discriminatory practices prohibited; employees or applicants for employment
subject to coverage All personnel actions affecting employees or applicants for
employment (except with regard to aliens employed outside the limits of the
United States) in military departments as defined in section 102 of title 5, in
executive agencies as defined in section 105 of title 5 (including employees and
applicants for employment who are paid from nonappropriated funds), in the
United States Postal Service and the Postal Rate Commission, in those units of
the Government of the District of Columbia having positions in the competitive
service, and in those units of the judicial branch of the Federal Government
having positions in the competitive service, in the Smithsonian Institution,
and in the Government Printing Office, the General Accounting Office, and the
Library of Congress shall be made free from any discrimination based on race,
color, religion, sex, or national origin.
* * * * * * *
(e) Government agency or official not relieved of responsibility to assure
nondiscrimination in employment or equal employment opportunity
Nothing contained in this Act shall relieve any Government agency or official
of its or his primary responsibility to assure nondiscrimination in
employment as required by the Constitution and statutes or of its or his
responsibilities under Executive Order 11478 relating to equal employment
opportunity in the Federal Government.
§ 2423.34 Decision and record.
(a) Recommended decision. Except when bench decisions are issued pursuant to §
2423.31(d), the Administrative Law Judge shall prepare a written decision
expeditiously in every case. All written decisions shall be served in accordance
with § 2429.12 of this subchapter. The decision shall set forth:
(1) A statement of the issues;
(2) Relevant findings of fact;
(3) Conclusions of law and reasons therefor;
(4) Credibility determinations as necessary; and
(5) A recommended disposition or order.
(b) Transmittal to Authority. The Judge shall transmit the decision and record
to the Authority. The record shall include the charge, complaint, service sheet,
answer, motions, rulings, orders, prehearing conference summaries, stipulations,
objections, depositions, interrogatories, exhibits, documentary evidence, basis
for any sanctions ruling, official transcript of the hearing, briefs, and any
other filings or submissions made by the parties.
§§ 2423.35-2423.39 [Reserved]
§ 2423.41 Action by the Authority; compliance with Authority decisions and
orders.
[Code of Federal Regulations]
[Title 5, Volume 3]
[Revised as of January 1, 2002]
From the U.S. Government Printing Office via GPO Access
[CITE: 5CFR2423.41]
[Page 404]
TITLE 5--ADMINISTRATIVE PERSONNEL
CHAPTER XIV--FEDERAL LABOR RELATIONS AUTHORITY, GENERAL COUNSEL OF THE FEDERAL
LABOR RELATIONS AUTHORITY AND FEDERAL SERVICE IMPASSES PANEL
PART 2423--UNFAIR LABOR PRACTICE PROCEEDINGS--Table of Contents
Subpart D--Post-Transmission and Exceptions to Authority Procedures
Sec. 2423.41 Action by the Authority; compliance with Authority decisions and
orders.
(a) Authority decision; no exceptions filed. In the absence of the filing of
exceptions within the time limits established in Sec. 2423.40, the findings,
conclusions, and recommendations in the decision of the Administrative Law Judge
shall, without precedential significance, become the findings, conclusions,
decision and order of the Authority, and all objections and exceptions to the
rulings and decision of the Administrative Law Judge shall be deemed waived for
all purposes. Failure to comply with any filing requirement established in Sec.
2423.40 may result in the information furnished being disregarded.
* * * * * * *
[Code of Federal Regulations]
[Title 5, Volume 3]
[Revised as of January 1, 2002]
From the U.S. Government Printing Office via GPO Access
[CITE: 5CFR2429.24]
[Page 425-426]
TITLE 5--ADMINISTRATIVE PERSONNEL
CHAPTER XIV--FEDERAL LABOR RELATIONS AUTHORITY, GENERAL COUNSEL OF THE FEDERAL
LABOR RELATIONS AUTHORITY AND FEDERAL SERVICE IMPASSES PANEL
PART 2429--MISCELLANEOUS AND GENERAL REQUIREMENTS--Table of Contents
Subpart B--General Requirements
Sec. 2429.24 Place and method of filing; acknowledgement.
(a) All documents filed or required to be filed with the Authority pursuant
to this subchapter shall be filed with the Director, Case Control Office,
Federal Labor Relations Authority, Docket Room, suite 415, 607 14th Street,
NW., Washington, DC 20424-0001 (telephone: FTS or Commercial (202) 482-6540)
between 9 a.m. and 5 p.m., Monday through Friday (except Federal holidays).
Documents hand-delivered for filing must be presented in the Docket Room not
later than 5 p.m. to be accepted for filing on that day.
(b) A document submitted to the General Counsel pursuant to this subchapter
shall be filed with the General Counsel at the address set forth in the
appendix.
(c) A document submitted to a Regional Director pursuant to this subchapter
shall be filed with the appropriate regional office, as set forth in the
appendix.
(d) A document submitted to an Administrative Law Judge pursuant to this
subchapter shall be filed with the appropriate Administrative Law Judge, as
set forth in the appendix.
(e) All documents filed pursuant to this section shall be filed in person,
by commercial delivery, by first-class mail, or by certified mail. Provided,
however, that where facsimile equipment is available, motions; information
pertaining to prehearing disclosure, conferences, orders, or hearing dates,
times, and locations; information pertaining to subpoenas; and other similar
matters may be filed by facsimile transmission, provided that the entire
individual filing by the party does not exceed 10 pages in total length,
with normal margins and font sizes.
(f) All matters filed under paragraphs (a), (b), (c) and (d) of this section
shall be printed, typed, or otherwise legibly duplicated: Carbon copies of
typewritten matter will be accepted if they are clearly legible.
(g) Documents in any proceedings under this subchapter, including
correspondence, shall show the title of the proceeding and the case number,
if any.
(h) The original of each document required to be filed under this subchapter
shall be signed by the party or by an attorney or representative of record
for the party, or by an officer of the party, and shall contain the address
and telephone number of the person signing it.
(i) A return postal receipt may serve as acknowledgement of receipt by the
Authority, General Counsel, Administrative Law Judge, Regional Director, or
Hearing Officer, as appropriate. The receiving officer will otherwise
acknowledge receipt of documents filed only when the filing party so
requests
[[Page 426]]
and includes an extra copy of the document or its transmittal letter which the
receiving office will date stamp upon receipt and return. If return is to be
made by mail, the filing party shall include a self- addressed, stamped
envelope for the purpose. [45 FR 3516, Jan. 17, 1980, as amended at 51 FR
45752, Dec. 22, 1986; 58 FR 53105, Oct. 14, 1993; 62 FR 40924, July 31, 1997]
[Code of Federal Regulations]
[Title 29, Volume 2, Parts 100 to 499]
[Revised as of July 1, 1998]
From the U.S. Government Printing Office via GPO Access
[CITE: 29CFR102.46]
[Page 50-51]
TITLE 29--LABOR CHAPTER I--NATIONAL LABOR RELATIONS BOARD
PART 102--RULES AND REGULATIONS, SERIES 8--Table of Contents
Subpart B--Procedure Under Section 10 (a) to (i) of the Act for the Prevention
of
Unfair Labor Practices 1
Sec. 102.46 Exceptions, cross-exceptions, briefs, answering briefs; time for
filing; where to file; service on the parties; extension of time; effect of
failure to include matter in exceptions; reply briefs; oral arguments.
* * * * * * *
(b)(1) Each exception (i) shall set forth specifically the questions of
procedure, fact, law, or policy to which exception is taken; (ii) shall
identify that part of the administrative law judge's decision to which
objection is made; (iii) shall designate by precise citation of page the
portions of the record relied on; and (iv) shall concisely state the grounds
for the exception. If a supporting brief is filed the exceptions document
shall not contain any argument or citation of authority in support of the
exceptions, but such matters shall be set forth only in the brief. If no
supporting brief is filed the exceptions document shall also include the
citation of authorities and argument in support of the exceptions, in which
event the exceptions document shall be subject to the 50-page limit as for
briefs set forth in Sec. 102.46(j).
(2) Any exception to a ruling, finding, conclusion, or recommendation which
is not specifically urged shall be deemed to have been waived. Any exception
which fails to comply with the foregoing requirements may be disregarded.
* * * * * * *
[Code of Federal Regulations]
[Title 29, Volume 4]
[Revised as of July 1, 2001]
From the U.S. Government Printing Office via GPO Access
[CITE: 29CFR1614.108]
[Page 261-262]
TITLE 29--LABOR
CHAPTER XIV--EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
PART 1614--FEDERAL SECTOR EQUAL EMPLOYMENT OPPORTUNITY--Table of Contents
Subpart A--Agency Program To Promote Equal Employment Opportunity
Sec. 1614.108 Investigation of complaints.
(a) The investigation of complaints shall be conducted by the agency against
which the complaint has been filed.
(b) In accordance with instructions contained in Commission Management
Directives, the agency shall develop an impartial and appropriate factual
record upon which to make findings on the claims raised by the written
complaint. An appropriate factual record is one that allows a reasonable
fact finder to draw conclusions as to whether discrimination occurred.
Agencies may use an exchange of letters or memoranda, interrogatories,
investigations, fact-finding conferences or a any other fact-finding methods
that efficiently and thoroughly address the matters at issue. Agencies are
encouraged to incorporate alternative dispute resolution techniques into
their investigative efforts in order to promote early resolution of
complaints.
(c) The procedures in paragraphs (c) (1) through (3) of this section apply
to the investigation of complaints:
(1) The complainant, the agency, and any employee of a Federal agency shall
produce such documentary and testimonial evidence as the investigator deems
necessary.
[[Page 262]]
(2) Investigators are authorized to administer oaths. Statements of
witnesses shall be made under oath or affirmation or, alternatively, by
written statement under penalty of perjury.
(3) When the complainant, or the agency against which a complaint is filed,
or its employees fail without good cause shown to respond fully and in
timely fashion to requests for documents, records, comparative data,
statistics, affidavits, or the attendance of witness(es), the investigator
may note in the investigative record that the decisionmaker should, or the
Commission on appeal may, in appropriate circumstances:
(i) Draw an adverse inference that the requested information, or the
testimony of the requested witness, would have reflected unfavorably on the
party refusing to provide the requested information;
(ii) Consider the matters to which the requested information or testimony
pertains to be established in favor of the opposing party;
(iii) Exclude other evidence offered by the party failing to produce the
requested information or witness;
(iv) Issue a decision fully or partially in favor of the opposing party; or
(v) Take such other actions as it deems appropriate.
(d) Any investigation will be conducted by investigators with appropriate
security clearances. The Commission will, upon request, supply the agency
with the name of an investigator with appropriate security clearances.
(e) The agency shall complete its investigation within 180 days of the date
of filing of an individual complaint or within the time period contained in
an order from the Office of Federal Operations on an appeal from a dismissal
pursuant to Sec. 1614.107. By written agreement within those time periods,
the complainant and the respondent agency may voluntarily extend the time
period for not more than an additional 90 days. The agency may unilaterally
extend the time period or any period
of extension for not more than 30 days where it must sanitize a complaint file
that may contain information classified pursuant to Exec. Order No. 12356, or
successor orders, as secret in the interest of national defense or foreign
policy, provided the investigating agency notifies the parties of the extension.
(f) Within 180 days from the filing of the complaint, or where a complaint
was amended, within the earlier of 180 days after the last amendment to the
complaint or 360 days after the filing of the original complaint, within the
time period contained in an order from the Office of Federal Operations on
an appeal from a dismissal, or within any period of extension provided for
in paragraph (e) of this section, the agency shall provide the complainant
with a copy of the investigative file, and shall notify the complainant
that, within 30 days of receipt of the investigative file, the complainant
has the right to request a hearing and decision from an administrative judge
or may request an immediate final decision pursuant to Sec. 1614.110 from
the agency with which the complaint was filed.
(g) Where the complainant has received the notice required in paragraph (f)
of this section or at any time after 180 days have elapsed from the filing
of the complaint, the complainant may request a hearing by submitting a
written request for a hearing directly to the EEOC office indicated in the
agency's acknowledgment letter. The complainant shall send a copy of the
request for a hearing to the agency EEO office.
Within 15 days of receipt of the request for a hearing, the agency shall provide
a copy of the complaint file to EEOC and, if not previously provided, to the
complainant.
[57 FR 12646, Apr. 10, 1992, as amended at 64 FR 37656, July 12, 1999]
[1] Pertinent statutory and regulatory provisions are set forth in the
attached Addendum to this brief.
[2] The Authority is filing a cross-application for enforcement of its order
contemporaneously with the filing of this brief.
[3] Tinker AFB does not contest these findings before the Court.
[4] The ALJ acknowledged that Luke AFB had been reversed by the Ninth
Circuit, but noted that the Authority had not signaled whether it intended to
acquiesce in that court's interpretation of the Statute. App. 23 n.12.
[5] The Authority filed a motion to dismiss Tinker AFB's petition for review
for lack of jurisdiction. Tinker AFB responded, and the Authority replied. By
order dated November 26, 2001, the Court referred the jurisdictional question to
the panel assigned to hear the petition on the merits.
[6] Section 2429.24 specifically requires that all documents "shall be filed
with the Director, Case Control Office[.]"
[7] See, e.g., Van Dorn Plastic Mach. Co. v. NLRB, 881 F.2d 302, 306 (6th
Cir. 1989) (declining to excuse a litigant from the exhaustion requirements of
29 U.S.C. § 160(e) simply because the NLRB was unlikely to have reacted
favorably); Diaz v. United Agric. Employee Welfare Benefit Plan & Trust, 50 F.3d
1478, 1485 (9th Cir. 1995) (concluding that "bare assertions of futility are
insufficient to bring a claim within the futility exception, which is designed
to avoid the need to pursue an administrative review that is demonstrably doomed
to fail") (citations omitted); Thetford Properties v. United States Dep't of
Housing & Urban Dev., 907 F.2d 445, 450 (4th Cir. 1990) ("Absent a clear showing
that an administrative agency has taken a hard and fast position that makes an
adverse ruling a certainty, a litigant's prognostication that he is likely to
fail before an agency is not a sufficient reason to excuse the lack of
exhaustion."); Springer v. Wal-Mart Assocs. Group Health Plan, 908 F.2d 897, 901
(11th Cir. 1990) (finding that "'bare allegations of futility are no substitute
for the "clear and positive" showing of futility . . . required before
suspending the exhaustion requirement.'") (quoting Makar v. Health Care Corp.,
872 F.2d 80, 83 (4th Cir. 1989)); Keystone Roofing Co. v. OSHRC, 539 F.2d 960,
964 (3rd Cir. 1976) (explaining that "probable futility cannot be equated with
extraordinary circumstances").
[8] In addition, the Second Circuit's decision in Dep't of Justice was
arguably an unwarranted expansion of its own precedent. The court in Dep't of
Justice relied on its previous decision in Overseas Education Association, Inc.
v. FLRA, 961 F.2d 36, 38 (2d Cir. 1992) (OEA), where it found futility to exist
only where there was a "formidable wall of precedent." See Dep't of Justice,
137 F.3d at 687-88. When the Second Circuit reviewed the Authority's "excessive
interference" test in OEA, the test had been used by the Authority for six years
and had been affirmed by the courts of appeals that reviewed it. OEA, 961 F.2d
at 38. In Dep't of Justice, however, the court cited only two cases where the
Authority had applied the rule at issue, 137 F.3d at 688, and it acknowledged a
split in the circuit courts over the matter, id. at 690.
[9] Tinker AFB conclusively responds (Br. 22 n.4) by saying that the fact
that it attempted to file exceptions "should not be held against it." This
response not only lacks support, but ignores the inconsistency between Tinker
AFB's current contention that filing exceptions would be futile and its previous
intent to file multiple exceptions. As will be discussed below, the exceptions
involved matters on which the Authority had not previously ruled.
[10] With respect to the latter, see Luke AFB, 54 F.L.R.A. at 720, 730
(Although the agency raised the question of whether OCI investigator was a
representative of the agency, it was unnecessary for the Authority to decide the
issue.).
[11] Contrary to Tinker AFB's contentions (Br. 22 ), the ALJ's comments in
the instant case did not clearly signal that nothing would change by filing
exceptions on this issue with the Authority. The ALJ's speculation as to the
Authority's future action has no binding effect on the Authority. In any event,
and regardless of the ALJ's opinions regarding what the Authority might do, the
ALJ was required to apply the law as currently interpreted by the Authority.
See, e.g., Dep't of the Air Force, Scott Air Force Base, Illinois, 51 F.L.R.A.
675, 702 (1995).
[12] In a footnote (Br. 26 n.6), Tinker AFB makes the outrageous claim that
the fact that the Authority declined to waive its procedural regulations in this
case "evidences how opposed the [Authority] is to [Tinker AFB]'s position in
this case." Although lacking any evidentiary or precedential support that the
Authority's Director of Case Control's procedural determination was influenced
by a desire by the Authority to avoid the merits of the case, Tinker AFB
nonetheless attacks the integrity of the Authority's adjudicatory processes.
This line of argument must be rejected as wholly without foundation.
[13] In urging that the Court lacks jurisdiction, the Authority has relied
on well- established principles of administrative law regarding both an agency's
right to establish its procedures and the requirement of administrative
exhaustion. Any weakening of these principles would affect not only the
Authority's processes, but those of other administrative agencies as well. See
NLRB v. FLRA, 2 F.3d 1190, 1199 (D.C. Cir. 1993) (Buckley, J., dissenting)
(noting "lack of an institutional perspective" of the Board in arguing that the
court should excuse the Board's failure to exhaust the Authority's processes as
required by § 7123(c), because it would be possible for a future party to use
the same argument to circumvent the Board's own adjudicatory authority under
§10(e) of the NLRA); see also Dep't of Justice, 137 F.3d at 687 (noting that
Department of Justice's futility argument is at variance with what the
Department normally demands of private litigants regarding exhaustion before
administrative agencies).
[14] Section 7121(c) excludes certain subjects such as retirement and
insurance benefits, and removals for reasons of national security from NGPs. A
substantially identical provision was found at § 7121(d) of H.R. 11280. House
Report at 56; Legis. Hist. at 702.
[15] In this regard, the facts of VA Denver and those in the instant case are
strikingly similar. Both involved interviews by agency representatives with
fact witnesses other than the aggrieved employee conducted in connection with
statutory appeals processes.
[16] Prior to January 1, 1979, federal sector discrimination complaints
were processed by the United States Civil Service Commission. See Executive
Order 12,106, 3 C.F.R. 586 (1978), reprinted in 42 U.S.C. § 2000e-4 note at 555.
The Authority and the MSPB were also established effective January 1, 1979. See
Executive Order 12,107, 3 C.F.R. 791 (1978), reprinted in 5 U.S.C. § 1101 note
at 676-680.
[17] Central to the court's holding in IRS, Fresno was the particular
character of "informal" precomplaint EEO proceedings. Under the governing
regulations an employee who believes he or she has been discriminated against
must consult with an EEO counselor who will informally investigate the matter,
seek to resolve the matter on an "informal basis," and otherwise counsel the
aggrieved employee. IRS, Fresno, 706 F.2d at 1021 n. 2 (setting out 29 C.F.R.
§1613.213(a) (1982)). Further, the regulations require that the counselor not
reveal the identity of the aggrieved employee until and unless the employee
files a formal complaint. Id.
[18] Hence, this case is also distinguishable from IRS, Fresno on that
ground. To the extent, however, that Tinker AFB relies on IRS, Fresno, for the
broader proposition that all EEOC complaints are not grievances, for the reasons
discussed above, we contend that IRS, Fresno was wrongly decided. In that
regard, we note that not only has the D.C. Circuit expressed its disagreement
with IRS, Fresno, but a subsequent panel of the Ninth Circuit did so as well.
See Dep't of Veterans Affairs Med. Ctr., Long Beach, Cal. v. FLRA, 16 F.3d 1526,
1534 n.4 (9th Cir. 1994).
[19] In that regard, Tinker AFB states (Br. 44) that this case "present[s]
issues under the Privacy Act of 1974, 5 U.S.C. § 552a," but does not explain how
the Privacy Act is implicated in this case.
[20] Section 7114(a)(2)(B) of the Statute provides for union representation
in investigatory interviews where the employee reasonably fears disciplinary
action will result.
[21] In this case, the complainants designated the Union as their
representative.
IN THE UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
No. 01-9528
_______________________________
TINKER AIR FORCE BASE,
OKLAHOMA CITY AIR LOGISTICS CENTER,
OKLAHOMA CITY, OKLAHOMA,
Petitioner
v.
FEDERAL LABOR RELATIONS AUTHORITY,
Respondent
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO, LOCAL 916,
Intervenor
_______________________________
ON PETITION FOR REVIEW AND CROSS-APPLICATION
FOR ENFORCEMENT OF AN ORDER OF
THE FEDERAL LABOR RELATIONS AUTHORITY
CROSS REPLY BRIEF FOR
THE FEDERAL LABOR RELATIONS AUTHORITY
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
I. The Authority Did Not Abuse its Discretion by Refusing to
Accept Tinker's Improperly Filed Exceptions 1
II. Filing Exceptions Would Not Have Been Futile 4
III. The Authority Properly Determined That Discrimination
Complaints Are Grievances 5
CONCLUSION 8
TABLE OF AUTHORITIES
CASES
Am. Fed'n of Gov't Employees v. FLRA, 744 F2d 73 (10th Cir. 1984) 5
Dep't of Veterans Affairs, Denver, Colo. v. FLRA, 3 F.3d 1386
(10th Cir. 1993) 5
Dep't of Veterans Affairs Med. Ctr., Long Beach, Cal. v. FLRA,
16 F.3d 1526 (9th Cir. 1994) 5, 6
Greene v. Meese, 875 F.2d 639 (7th Cir. 1989) 4
Internal Revenue Service, Fresno Service Center v. FLRA,
706 F.2d 1019 (9th Cir. 1983), 5
NLRB v. Washington Star Co., 732 F.2d 974 (D.C. Cir. 1984) 3
NTEU v. FLRA, 774 F.2d 1181 (D.C. Cir. 1985) 5, 7
DECISIONS OF THE FEDERAL LABOR RELATIONS AUTHORITY
Department of the Air Force, 436th Airlift Wing, Dover Air Force Base,
Dover, Delaware, 57 F.L.R.A. 304 (2001), petition for review filed,
No. 01-1373 (D.C. Cir. Aug 24, 2001) 4, 7
Dep't of Justice, United States Immigration and Naturalization Serv.,
United States Border Patrol, El Paso, Tex, 40 F.L.R.A. 792 (1991) 2
Soc. Sec. Admin. Branch Office East, Liverpool, Ohio, 54 F.L.R.A. 142
(1998) 2
Social Security Administration, Office of Hearings and Appeals, Falls
Church, Virginia, 55 F.L.R.A. 349 (1999) 1, 2
DECISIONS OF THE FEDERAL LABOR RELATIONS AUTHORITY
United States Dep't of Agric., Farm Serv. Agency, Kansas City, Mo.
and United States Dep't of Agric., Office of the Inspector Gen.,
Kansas City, Mo., 55 F.L.R.A. 22 (1998) 2
United States Dep't of the Navy, Naval Audit Serv., 44 F.L.R.A. 717
(1992) 2
United States Dep't of the Treasury, Customs Serv., Washington D.C.,
38 F.L.R.A. 875 (1990) 2
STATUTES
Federal Service Labor-Management Relations Statute,
5 U.S.C. §§ 7101-7135 (2000) 5
5 U.S.C. § 7114(a)(2)(A) 5, 6, 7
5 U.S.C. §§ 7701- 7703 7
42 U.S.C. § 2000e-16 7
CODE OF FEDERAL REGULATIONS
5 C.F.R. § 2429.24 2
29 C.F.R. Pt. 1201 7
29 C.F.R. Pt. 1614 7
IN THE UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
No. 01-9528
_______________________________
TINKER AIR FORCE BASE,
OKLAHOMA CITY AIR LOGISTICS CENTER,
OKLAHOMA CITY, OKLAHOMA,
Petitioner
v.
FEDERAL LABOR RELATIONS AUTHORITY,
Respondent
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO, LOCAL 916,
Intervenor
_______________________________
ON PETITION FOR REVIEW AND CROSS-APPLICATION
FOR ENFORCEMENT OF AN ORDER OF
THE FEDERAL LABOR RELATIONS AUTHORITY
CROSS REPLY BRIEF FOR
THE FEDERAL LABOR RELATIONS AUTHORITY
I. The Authority Did Not Abuse its Discretion by Refusing to Accept Tinker's
Improperly Filed Exceptions
A. Tinker Air Force Base (Tinker AFB) mistakenly contends (Reply Brief (R.
Br.) at 6) that it should be excused from its failure to file timely
exceptions because the Authority has a policy of declining to dismiss
filings on the basis of minor deficiencies, citing Social Security
Administration, Office of Hearings and Appeals, Falls Church, Virginia, 55
F.L.R.A. 349, 350 (1999) (SSA). Tinker AFB's reliance on SSA is misplaced.
In SSA, the Authority declined to dismiss a timely filing for discrepancies
in the statement of service, noting that the discrepancies did not impede
the opposing party's ability to respond. SSA, 55 F.L.R.A. at 350. Similarly,
the other cases cited by Tinker AFB also involved technical deficiencies in
timely filings. See, e.g. Soc. Sec. Admin. Branch Office East, Liverpool, Ohio,
54 F.L.R.A. 142, 145-6 (1998) (discrepancies in docket number and case caption);
United States Dep't of the Navy, Naval Audit Serv., 44 F.L.R.A. 717, n.1 (1992)
(failure to provide opposing party with a statement of service). Here, however,
Tinker's error was not a mere technical flaw, but one that resulted in untimely
filing of the exceptions.
Significantly, Tinker AFB has not cited a single case where the Authority
has waived the time limit for filing exceptions to an ALJ decision under
circumstances similar to those present in this case. To the contrary, the
Authority consistently and uniformly requires strict adherence to filing
deadlines.[1] See, e.g., United States Dep't of Agric., Farm Serv. Agency,
Kansas City, Mo. and United States Dep't of Agric., Office of the Inspector
Gen., Kansas City, Mo., 55 F.L.R.A. 22, 23-24 (1998) (one-day delay caused
by party's internal mail system will not excuse untimely filings); Dep't of
Justice, United States Immigration and Naturalization Serv., United States
Border Patrol, El Paso, Tex, 40 F.L.R.A. 792, 793 (1991) (exceptions found
in Authority's Case Control Office the morning after the due date without
evidence of timely delivery were untimely); United States Dep't of the
Treasury, Customs Serv., Washington D.C., 38 F.L.R.A. 875, 877 (1990) (delay
caused by courier service procured by party does not excuse untimely
filing).
B. Relying on NLRB v. Washington Star Co., 732 F.2d 974, 975 (D.C. Cir.
1984) (Washington Star), Tinker AFB also contends (R. Br. at 5) that because
it made "good faith efforts" to comply with Authority regulations, its
untimely filing should have been excused. In Washington Star, the court
recognized that the National Labor Relations Board (Board) has broad
discretion in making and applying its procedural rules, but nonetheless
held that, in the specific circumstances of that case, the Board arbitrarily
refused to accept exceptions filed one day late. 732 F.2d at 976-77.
However, Washington Star is readily distinguishable from the instant case.
The D.C. Circuit's decision in Washington Star was based on two extenuating
factors, neither of which are present here. First, the court found that the
Star made a good faith, though mistaken, efforts to properly file its
exceptions. Id. at 975-76. In finding "good faith efforts," the court
stated that the Star's misreading of the filing requirements was excusable
because it was "a product of the opaque captions and curious wording of the
pertinent [Board] regulations." Id. at 976 n.1. In sharp contrast, there
was no ambiguity --and Tinker AFB has asserted none-- in either the ALJ's
instructions or the Authority's regulations in this case. Rather, Tinker
AFB's attorney simply failed to follow these clear instructions. Second,
the court stressed that the Board had not consistently insisted on strict
application of its filing deadlines, occasionally waiving time limits in
situations where parties had demonstrated less good faith than the Star did.
Id. at 977. The Authority, on the other hand, has consistently required
strict compliance with its filing deadlines.[2]
For these reasons, Tinker AFB has failed to demonstrate that the Authority
abused its discretion in refusing to accept Tinker AFB's untimely
exceptions.
II. Filing Exceptions Would Not Have Been Futile
Tinker AFB, although recognizing that the futility doctrine is an exception
to the rule requiring administrative exhaustion, nonetheless continues to
argue mistakenly that the exception applies in this case. In its reply
brief, Tinker argues (R. Br. at 3-5) that the Authority's decision in
Department of the Air Force, 436th Airlift Wing, Dover Air Force Base,
Dover, Delaware, 57 F.L.R.A. 304 (2001) (Dover AFB), petition for review
filed, No. 01-1373 (D.C. Cir., oral argument scheduled Oct. 10, 2002),
demonstrates that filing exceptions would be futile. In so arguing, Tinker
AFB ignores two fundamental principles concerning the futility doctrine.
First, as noted in the Authority's responsive brief (Br. at 18-19), the mere
likelihood of an unsuccessful result is insufficient to establish futility.
Second, even if the agency's ultimate conclusion remains unchanged,
permitting the agency to elaborate on its rationale serves the purposes
behind the exhaustion requirement. See Greene v. Meese, 875 F.2d 639, 641
(7th Cir. 1989). As previously noted (Authority Br. at 22-23), the
Authority took the opportunity in Dover AFB to thoroughly review the issue
at hand.[3]
Accordingly, Tinker AFB's failure to file timely exceptions should not be
excused by its purported futility.
III. The Authority Properly Determined That Discrimination Complaints Are
Grievances
A. Contrary to the suggestions of Tinker AFB (R. Br. at 2-3), the Authority
is entitled to deference in determining that discrimination complaints are
grievances within the scope of § 7114(a)(2)(A) of the Federal Service Labor-
Management Relations Statute, 5 U.S.C. §§ 7101-7135 (2000) (Statute). See
Am. Fed'n of Gov't Employees v. FLRA, 744 F.2d 73, 75 (10th Cir. 1984).
This question concerns only the construction of the Authority's enabling
legislation and does not implicate the regulations of the Equal Employment
Opportunity Commission (EEOC). To the extent EEOC procedures may raise
issues concerning the scope of a union's participation in formal
discussions, these issues are logically distinct from the threshold question
of whether such discrimination complaints are grievances within the scope of
§ 7114(a)(2)(A) of the Statute.
Further, and in any event, Tinker AFB fails to address the Authority's
arguments (Br. 24-33), based on the plain language of the Statute and the
decisions of three courts including this one,[4] that the Statute's
definition of "grievance" encompasses all employment-related complaints,
regardless of the forum in which they are pursued. Instead, Tinker AFB
repeatedly alludes (R. Br. 12, 16) to the Ninth Circuit's statement from
Internal Revenue Service, Fresno Service Center v. FLRA, 706 F.2d 1019,
1024 (9th Cir. 1983) that discrimination complaints are different than the
"contractual grievance process." Arguments based on the distinction between
discrimination complaints and a negotiated grievance procedure are, however,
irrelevant. As clearly demonstrated, the Statute's broad definition of
grievance includes, but is not limited to, grievances pursued through a
negotiated procedure.
Similarly irrelevant is Tinker AFB's assertion (R. Br. at 16) that there is
no reason that the union should have the same rights in discrimination
complaints as it does in the negotiated procedure. As the Authority has
stressed (see Authority Br. at 30), the union's role in statutory appeals is
more restricted than its role in the negotiated grievance procedure. A more
restricted role, however, does not equate to the forfeiture of the right to
attend formal discussions granted by Congress in § 7114(a)(2)(A) of the
Statute.
B. Tinker AFB also overstates its case when it asserts (R. Br. at 15) that
the processing of discrimination complaints has no impact on the bargaining
unit. Both the Authority (Br. at 29-30) and the intervening union (Br. at
36-39) have demonstrated the interests a union has in the processing of
discrimination complaints filed by bargaining unit employees. Further, the
fact that the union's interest, as representative of the bargaining unit as
a whole, may not be the same as that of the individual complainant is no
reason to deny the union's right to attend formal discussions. If there are
divergent interests, it is up to the union to balance the competing
interests of the complainant and other bargaining unit members. In
addition, and as discussed below, where an actual and direct conflict is
demonstrated between a complainant's rights under the EEOC procedures and
the union's institutional rights under the Statute, the Authority will
consider the conflict in adjudicating the case.
C. With respect to this Court's decision in Veterans Affairs, Tinker AFB
repeats its arguments (R. Br. at 8-9, Opening Br. at 41-44) that because
that case found proceedings before the Merit Systems Protection Board
(MSPB), not the EEOC, to be grievances, it has no relevance to the instant
case. However, as the Authority has demonstrated (Authority Br. at 31-33),
many of Tinker AFB's claims made about EEOC procedures apply equally to MSPB
procedures. For example, both processes are established and governed by
statutes and regulations other than the Statute and the Authority's
regulations. See 42 U.S.C. § 2000e-16, 29 C.F.R. Pt. 1614 (EEOC); 5 U.S.C.
§§ 7701-7703, 5 C.F.R. Pt. 1201 (MSPB). Further, sensitive, personal
matters may be disclosed in MSPB proceedings as well as in those before the
EEOC. Contrary to Tinker AFB's contentions, Veterans Affairs squarely
supports the proposition that statutory appeals, including discrimination
complaints, are "grievances" within the scope of § 7114(a)(2)(A) of the
Statute.
D. Lastly, with respect to its policy arguments, based principally on
confidentiality concerns, Tinker AFB continues to raise only hypothetical
problems. Tinker has not identified one confidentiality concern raised by
the facts in this case. The Authority has continued to express a
willingness to consider the competing rights of individual complainants and
a union, when direct conflicts are asserted.[5] In that regard, the
Authority has reasonably concluded that it is preferable to address such
matters when they are specifically raised, rather than in a hypothetical and
speculative context. See Dover AFB, 57 F.L.R.A. at 310.
CONCLUSION
The petition for review should be dismissed for lack of jurisdiction.
Assuming the Court has jurisdiction, the petition should be denied on the
merits. In either event, the Court should enforce the Authority's order.
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
May 3, 2002
IN THE UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
_______________________________
TINKER AIR FORCE BASE,
OKLAHOMA CITY AIR LOGISTICS CENTER,
OKLAHOMA CITY, OKLAHOMA,
Petitioner
v. No. 01-9528
FEDERAL LABOR RELATIONS AUTHORITY,
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 916,
Intervenor
_______________________________
CERTIFICATE OF SERVICE
I certify that copies of the Cross Reply Brief for the Federal Labor
Relations Authority have been served this day, by mail, upon the following:
Robert D. McCallum, Jr. Mark D. Roth, General Counsel
William Kanter Charles A. Hobbie, Deputy General Counsel
Sandra Wien Simon AFGE, AFL-CIO
Attorneys, Appellate Staff 80 F Street, N.W.
Civil Division, Room 9146 Washington, D.C. 20001
601 D Street, N.W.
Washington, D.C. 20530-0001
Kevin M. Grile, Assistant General Counsel
AFGE, AFL-CIO
300 South Ashland Avenue
Suite 302
Chicago, IL 60607
Thelma Brown
Paralegal Specialist
May 3, 2002
[1] Tinker characterizes its error (R. Br. at 6-7) only as a "failure to
serve the Case Control Office which is a ministerial subdivision of the
[Authority]." This severely understates the issue. The Authority has
designated the Case Control Office as the recipient of all filings. 5 C.F.R. §
2429.24. Failure to file with the Case Control Office is a failure to file with
the Authority. Tinker's administrative failure here would be analogous in a
judicial setting to serving all parties to an appeal, but failing to file the
relevant documents with the court Clerk's Office.
[2] The court in Washington Star also noted the lack of prejudice. 732 F.2d
at 976. However, consistent with well-established precedent (see Authority Br.
at 15), the court looked to the lack of prejudice only where other mitigating
circumstances were present. Nothing in Washington Star, nor any other cases
cited by Tinker AFB, rebuts the principle that lack of prejudice to other
parties is, by itself, insufficient to require waiving filing deadlines.
[3] Thus, Tinker AFB's statement (R. Br. at 4-5) that Chairman Cabaniss's
dissent is irrelevant is mistaken. Not only is the Chairman's determination to
reverse her earlier position evidence that reconsideration of an issue can lead
to changed results; a reviewing court now also has the benefit of her dissenting
views.
[4] Dep't of Veterans Affairs, Denver, Colo. v. FLRA, 3 F.3d 1386 (10th Cir.
1993) (Veterans Affairs); Dep't of Veterans Affairs Med. Ctr., Long Beach, Cal.
v. FLRA, 16 F.3d 1526 (9th Cir. 1994); NTEU v. FLRA, 774 F.2d 1181 (D.C. Cir.
1985) (NTEU).
[5] Tinker AFB mistakenly relies (R. Br. at 9, 14) on the D.C. Circuit's
dicta in NTEU to support its contention that potential conflicts of rights
between individuals and a union dictate that unions have no right to
participation in EEOC proceedings. However, nothing in the court's statement
indicates that § 7114(a)(2)(A) is per se inapplicable to discrimination
complaints. The court stated only that "a direct conflict" between the rights
of unions under § 7114(a)(2)(A) and the "rights" of individual complainants
should presumably be resolved in favor of the individual. NTEU, 774 F.2d at
1189 n. 12 (emphasis in original). As noted above, the Authority has recognized
that where such a direct conflict is demonstrated, it will consider it. In the
instant case, no such conflict is demonstrated or asserted.
