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.