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.