Tinker AFB, Oklahoma City Logistics Center, Oklahoma City, Oklahoma v. Federal Labor Relations Authority, No. 01-9528/02-9515 (10th Cir. Nov. 4, 2002).

The 10th Circuit dismissed, on the ground it lacked jurisdiction, the agency's petition for review of FLRA's decision to adopt (without precedential significance) an ALJ's holding that the agency committed a ULP when it didn't afford the union an opportunity to be present at a formal discussion concerning the investigation of formal EEO complaints. In the process, it rejected the agency's attempt to excuse its procedural mistakes in filing untimely exceptions to the ALJ's recommended decision by arguing that it would have been futile, given FLRA's precedent, to raise its exceptions. The court, citing the Supreme Court's decision in United States v. L.A. Tucker Truck Lines, Inc., 344 U.S. 33 (1952), said that "L.A. Tucker stands for the proposition that a party may not consider it to be futile to lodge an objection before an administrative body simply because the body has precedent which contradicts the party's position."

The ALJ, applying Luke AFB, 54 FLRA No. 75, concluded that the activity committed a "formal discussion" ULP when it interviewed bargaining unit employees as part of an investigation of two formal EEO complaints filed by other bargaining unit employees without providing the union with notice and an opportunity to be represented at the interviews. Although the ALJ provided the activity with information on where to file exceptions to his recommended decision, including an April 30, 2001, deadline, the activity did not file its exceptions, which had been sent to the wrong address, until May 16, 2001. FLRA dismissed the untimely filed exceptions and stated that "the findings, conclusions and recommendations of the ALJ constitute, without precedential significance, the findings, conclusions, and decision and order of the Authority. See 5 C.F.R. 2423.41(a). All objections and exceptions are waived for all purposes." It accordingly directed the activity to comply with the ALJ's order.

The agency sought 10th Circuit review of the Authority's decision and defended itself against FLRA's claim that the court lacked subject matter jurisdiction (given that the issues being raised by the agency had not been raised before FLRA) by arguing, among other things, that FLRA had abused its discretion in not waiving the expired time limit. This was rejected by the court:

The agency, citing FLRA v. Department of Justice, 137 F.3d 683 (2d Cir. 1998), also argued that the court should excuse it from its failure to present to FLRA the issues it wanted the court to address because it would have futile to present an argument or objection to FLRA, given FLRA's precedent on the issue. However, the court said that "[t]he Second Circuit's conception of futility is broader than that embraced by the Supreme Court and the Tenth Circuit." Noting that the Supreme Court discussed the viability of a futility argument in United States v. L.A. Tucker Truck Lines, Inc., 344 U.S. 33, 35-67, the Tenth Circuit continued as follows:

The court accordingly dismissed the agency's appeal and granted FLRA's cross-petition for enforcement of its order.

Although the agency didn't succeed in getting the Tenth Circuit to address the issue of whether the union has a "formal discussion" right to be present at EEO investigatory interviews, another case, involving review of 57 FLRA No. 65 (failure to provide the union with notice and opportunity to be represented at a mediation session concerning a formal EEO complaint), is pending before the D.C. Circuit.