Tinker Air Force Base, Oklahoma City Air Logistics Center, Oklahoma City, Oklahoma v. FLRA, 321 F.3d 1242 (10th Cir. 2002)

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