NATIONAL COUNCIL OF EEOC LOCALS No. 216
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
Gabrielle Martin, President
EEOC- Suite 510
303 E.17th Avenue
Denver, CO 80203
February 11, 2003
Equal Employment Opportunity Commission
1801 L Street, N.W.
Washington, D.C. 20507
Dear Chairwoman Dominguez:
This letter serves as an appeal by the American Federation of Government Employees (AFGE), National Council of EEOC Locals No. 216 (the National Council) of the EEOC’s adverse decision of this Union's FAIR Act challenge, dated January 8, 2003. That letter requested the removal of positions from the Agency's commercial activities inventory. Specifically, it offered numerous examples of the inherently governmental activities performed by the following four categories:
1. 35 positions under Activity Code No. D0000, located in OFP, ORIP, EXEC SEC, OGC OIRM – Program Assistants with assignments throughout the nation, including Headquarters.
2. 48 positions under Activity Code No W0000, located in OFP, OCFOAS, OGC, ORIP – Administrative Support (Office Automation Assistant/clerk and Management Information) with assignments throughout the nation, including Headquarters.
3. 35 positions under Activity Code W999, located in the Office of Field Programs –Other ADP Functions (Management Information), with assignments throughout the nation, including headquarters.
4. 29 positions under Activity Function Code No. Y415, located in the Office of Field Programs –Legal Services or Support, with assignments throughout the nation.
A copy of the National Council’s challenge is attached.
The EEOC’s reply to that letter clearly violates the FAIR
Act challenge process and policy guidance relating to inherently governmental
functions. Essentially, the EEOC
asserts that, consistent with its authority, it has made a determination that
the positions are inherently governmental, providing little other information.
The problem with that determination is that the work
performed by the employees in these four categories of positions involves is of
a highly sensitive and confidential nature.
Employees in the first category, the 35 program assistants, are involved
in the contract determination process for the mediation program. As such, confidential bid information is
subject to being revealed and conflicts of interest created.
For the second category of employees, the 48 administrative
support positions involve the initial handling of confidential documents. Due to the confidential nature of the
documents these employees handle, which range from the proprietary information
of companies, to the individual personnel and medical records of non-charging
parties, the businesses under investigation often are reluctant to provide the
documents to our employees based on privacy concerns. While the Commission’s procedural regulations allow for the
enforcement of subpoenas in court, once the business community becomes aware
that individuals who are not loyal employees are handling such documents, there
will be an increase in the number of investigations which involve subpoena
enforcement actions. After all, one of
the inherently governmental functions is to safeguard the identity of entities
and other confidential information for those entities under investigation.
For the third category of employees, the 35 Management
Information positions involve computer infrastructure work which impacts on the
decisions made. Employees in this
category often handle both contract information, as well as confidential data.
For the final categories of employees, the 27 legal support
positions, inherent to the agency’s litigation program is the need to protect
confidential documents as well as to safeguard the agency’s internal policies
and procedures. Since the legal units
also engage expert witnesses and/or statisticians, these employees initially
receive and play a role in the bid process.
The potential for conflict of interest between contractors is readily
However, it is very clear that these activities are inherently
governmental. Employees in the various cited functions codes perform duties
defined as inherently governmental under section 7(a) and Appendix A of the
Office of Federal Procurement Policy Letter 92-1, "Inherently Governmental
Functions". On behalf of the
members of the National Council whom I represent, I request that these
positions be removed from the commercial activities inventory and that a
revised commercial activities inventory be submitted to the Office of
Management and Budget as well as Congress.
Please fax a copy of the decision to me at 303.866.1900.
Additionally, please mail a hard copy to me at the address above.
Thank you for your time and attention to this matter.
Gabrielle Martin, President
cc: AFGE National