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The briefs listed below were prepared and filed by the Office of the Solicitor in litigation involving the FLRA. The listing is arranged alphabetically by case caption.
Although we endeavor to ensure that electronic copies of these briefs are complete and accurate, errors or omissions may occur. The official text of any brief is the text filed with the court.
The D.C. Circuit denied a union's petition for review of an Authority ULP decision in an information case arising under section 7114(b)(4) of the Statute. The complaint alleged that the Agency improperly refused to provide documents requested by the union in connection with a pending grievance. Characterizing as "conclusory" the union's claim that it "needed the information to prepare for arbitration of its previously filed grievance," the Authority found that the union failed to articulate a particularized need for the documents. The court agreed, rejecting the union's claim that the connection between the information the union sought and the grievance was "self-evident."
Brief for the Federal Labor Relations Authority
The court dismissed, per curiam, union petitions for review of two Authority decisions reviewing arbitration awards, on the ground that the court lacked jurisdiction under section 7123 of the Statute. In the cases involved, the Authority set aside arbitrators' awards granting severance pay. The court concluded that it lacked jurisdiction under section 7123, and determined that other jurisdictional grounds, such as that provided by the Supreme Court's Leedom v. Kyne decision, did not apply.
Brief for the Federal Labor Relations Authority
The Ninth Circuit denied the union's petition for review of an Authority decision that the Agency did not commit a ULP when it refused to bargain over a matter covered by section 7106(b)(1) of the Statute. The court affirmed the Authority's determination that section 2(d) of Executive Order 12871, which provides that agencies "shall . . . negotiate over the subjects set forth in 5 U.S.C. 7106(b)," constitutes a direction to agency personnel rather than an election to bargain under section 7106(b)(1).
Brief for the Federal Labor Relations Authority
The D.C. Circuit denied the union's petition for review of an Authority decision that the union's proposal regarding performance ratings is outside the duty to bargain. The court found reasonable and deferred to the Authority's explanation of why performance rating levels are not a "method" or "means" of performing work.
Brief for the Federal Labor Relations Authority
American Federation of Government Employees, AFL-CIO, Local 1592 v. FLRA, 288 F.3d 1238 (10th Cir. 2002), reviewing 0-NG-2577-REC.
The Tenth Circuit denied the union's petition for review. The
union sought review of an Authority order dismissing the union's
petition for review of a negotiability issue for procedural reasons.
Brief for the Federal Labor Relations Authority
American Federation of Government Employees, Local 3936, AFL-CIO v. FLRA, 239 F.3d 66 (1st Cir. 2001), reviewing 56 FLRA 174 (2000).
The First Circuit affirmed the Authority's final decision and order
finding that in an unfair labor practice proceeding, the Authority
lacked jurisdiction over National Guard technician terminations. The
court agreed with the Authority "that the plain language of section
709(f)(4) of the Technicians Act categorically precludes review of
technician terminations under the Labor-Management Act."
Brief for the Federal Labor Relations Authority; Supplemental Brief for the Federal Labor Relations Authority Responding to the Amicus-Curiae Brief of the Commonwealth of Puerto Rico
Union seeks review of Authority decision finding nonnegotiable a proposal requiring the agency to allow a union observer at performance-based interviews conducted to fill unit positions.
Brief for the Federal Labor Relations Authority
The court dismissed the Guard's petition for review for lack of jurisdiction because the appeal had not been authorized by the Department of Justice nor approved by the Solicitor General. The court left pending the Authority's cross-application for enforcement.
Brief for the Federal Labor Relations Authority
Association of Civilian Technicians, Inc. v. FLRA, 283 F.3d 339 (D.C. Cir. 2002), reviewing No. 99-2562 (D.D.C. 2001).
The D.C. Circuit affirmed the decision of the United States District
Court for the District of Columbia holding that with certain exceptions not
present here, district courts lack jurisdiction to review Authority
appropriate unit determinations. The district court dismissed the
union's complaint seeking review of the Authority's decision denying the
union's petition to consolidate various bargaining units of National Guard
civilian technicians into a single unit. The district court held that
it lacked jurisdiction to review the case under § 7123 of the Statute.
The court of appeals agreed with the district court when it ruled § 7123
of the Statute, which "precludes judicial review" of appropriate
unit determinations, applies to district courts.
Brief for the Federal Labor Relations Authority
Association of Civilian Technicians, New York State Council v. FLRA, No. 00-1485 (D.C. Cir. Nov. 9, 2001) [unpublished decision], reviewing 56 FLRA 444 (2000); reconsideration denied, 56 FLRA 868 (2000) .
The court dismissed the union's petition for review of an Authority decision finding nonnegotiable a
proposal requiring the agency to convert certain full-time military
positions to positions that could be filled by civilian technicians or
other types of personnel. The court agreed with the Authority that the
Guard's regulation, ANGI 36-101, does not require the Guard to hire
civilian technicians.
Brief for the Federal Labor Relations Authority
Association of Civilian Technicians, Puerto Rico Army Chapter v. FLRA, 269 F.3d 1112 (D.C. Cir. 2001), reviewing 56 FLRA 493 (2000); reconsideration denied, 56 FLRA 807 (2000).
The D.C. Circuit granted the union's petition for review, vacated the
decision and order of the Authority, and remanded to the Authority for
further proceedings. The Authority had found nonnegotiable
a provision requiring the agency to reimburse employees for lost
personal travel expenses resulting from the cancellation of previously
approved leave. The Authority had applied the Travel Expenses Act,
5 U.S.C. § 5701, et seq., in making this determination, however, the
court found that the Travel Expenses Act does not prohibit the proposed
provision since the Act "governs per diem and reimbursement when an
employee is 'traveling on official business.'" The court remanded with direction
to consider whether the expenditures required by the disputed provision
are authorized according to the Statute.
Brief for the Federal Labor Relations Authority
The Ninth Circuit denied the union's petition for review of an Authority decision dismissing a ULP complaint against an agency. The Authority had ruled that the agency's refusal to implement a Federal Service Impasses Panel-imposed provision for official time for lobbying did not violate the Statute because the provision was inconsistent with a prohibition in the agency's Appropriations Act. The court agreed with the Authority's interpretation of the Appropriations Act and affirmed the Authority's holding that the provision was inconsistent with federal law. Therefore, the court agreed, the agency was not required to include the provision in the collective bargaining agreement.
Brief for the Federal Labor Relations Authority
The D.C. Circuit denied the union's petition for review of an Authority decision finding a proposal nonnegotiable because the proposal concerns a military aspect of technician employment. The union's proposal would have governed how the National Guard informs dual-status technicians of their eligibility to volunteer for active duty by taking leave from their civilian posts pursuant to 5 U.S.C. § 6323(d). Section 6323(d) is a special pay status entitling technicians to only their civilian salaries -- and not military pay -- while on leave. The Court gave the FLRA's interpretation "judicial respect" and found that the proposal threatens to interfere with the National Guard's discretion to call technicians into action as it sees fit, pursuant to 10 U.S.C. § 12301. Thus, the court found that the proposal was inconsistent with 10 U.S.C. § 976, which prohibits bargaining over the terms and conditions of military service.
Brief for the Federal Labor Relations Authority
The D.C. Circuit ruled that it lacked jurisdiction over two unions'
petition for review of an Authority negotiability decision because the petition
was prematurely filed. The court agreed with the Authority that the unions'
pending request for administrative reconsideration rendered the underlying
Authority action nonfinal. The court further agreed that the Authority's
subsequent issuance of a final order in the case, denying the request for
reconsideration, did not cure the petition's prematurity.
Brief for the Federal Labor Relations Authority
Association of Civilian Technicians, Tony Kempenich Memorial Chapter 21 v. FLRA, 269 F.3d 1119 (D.C. Cir. 2001), reviewing 56 FLRA 526 (2000); reconsideration denied, 56 FLRA 947 (2000).
The D.C. Circuit denied the union's petition for review of an Authority decision finding
nonnegotiable, in part, a provision requiring the agency to grant official time to union officials
for lobbying Congress on pending or desired legislation. The court
agreed with the Authority that the provision was contrary to law and
therefore nonnegotiable. Thus, the court held that § 8012 of the
Department of Defense Appropriations Act, Pub. L. No. 105-262, 112 Stat.
2279, 2299 (1998), prohibits the "provision because . . . official
time may only be granted to the extent that it is consistent with all
'applicable laws and regulations.'" 269 F.3d at1122 (quoting
NFFE Local 2015, 41 F.L.R.A. 1158, 1185 (1991)).
Brief for the Federal Labor Relations Authority
The D.C. Circuit denied an individual's petition for review of an Authority decision dismissing unfair labor practice complaints against an agency and a union. Agreeing with the Authority, the Court held that section 7120(e) of the Statute does not preclude a union official from serving simultaneously as an ethics counselor. The individual had claimed that such dual service created a "conflict of interest" in violation of section 7120(e). The court disagreed, affirmed the Authority's "objective person" criteria for determining whether a conflict of interest exists within the meaning of section 7120(e), and denied the petition.
Brief for the Federal Labor Relations Authority
Department of the Air Force, 315th Airlift Wing, Charleston Air Force Base, Charleston, South Carolina v. FLRA, 294 F.3d 192 (D.C. Cir. 2001), reviewing 57 FLRA 80 (2001) .
The D.C. Circuit granted the agency's petition for review, reversed
the Authority's decision and order, and remanded the case with direction
to dismiss the unfair labor practice (ULP) complaint. The Authority had
held that the agency committed a ULP by suspending a union
representative for activity that was not “flagrant misconduct” and
was therefore protected by § 7116(a)(1) and (2). The court found,
instead, that the conduct was not protected activity under the federal
labor statute.
Brief for the Federal Labor Relations Authority
Eisinger v. FLRA, 218 F.3d 1097 (9th Cir. 2000), reviewing 54 FLRA 562 (1998).
The Ninth Circuit reversed an Authority decision dismissing an
individual's unit clarification petition filed pursuant to section
7111 of the Statute. Citing 5 C.F.R. § 2422.2(c), the Authority had
determined that only agencies and unions could file unit clarification
petitions and that, therefore, the individual lacked standing to file
such a petition. Ruling that it had jurisdiction under section 7123 of
the Statute to review Authority decisions on petitions filed under
section 7111, the court disagreed and reversed the Authority's
determination.
Brief for the Federal Labor Relations Authority
The First Circuit granted the Authority's petition for enforcement of an unexcepted-to-ALJ decision finding that the agency violated the Statute by repudiating an MOU. The court enforced the Authority's order even though the agency agreed, on the eve of oral argument, to comply. The court stated in this regard that "judicial enforcement will serve as an effective reminder to the respondent of its continuing obligation fully and seasonably to effectuate the terms of the Authority's remedial order."
Brief for the Federal Labor Relations Authority
On remand from the Supreme Court (119 S. Ct. 2387 (1999)), the Second Circuit enforced the Authority's order in the above-referenced cases. The Authority found that the agency committed ULPs when it denied an exclusive representative and certain unit employees their section 7114(a)(2)(B) representation rights during Office of the Inspector General (OIG) investigations. The Supreme Court had vacated an earlier Second Circuit decision that denied the Authority's application for enforcement, instructing the court to reconsider its decision in light of NASA v. FLRA, 527 U.S. 229 (1999). In NASA v. FLRA, the Supreme Court affirmed the Authority's decision that an OIG investigator is a "representative of the agency" when examining a bargaining unit employee who reasonably fears that discipline might result from the examination. The Second Circuit reconsidered its earlier position and granted the Authority's application for enforcement.
Petitioner's Petition for Rehearing with Suggestion for Rehearing In Banc; Petition for a Writ of Certiorari to the United States Court of Appeals for the Second Circuit
The D.C. Circuit denied the union's petition for review of an Authority decision dismissing a ULP complaint. The court found that the union had failed to raise to the Authority the arguments that it was making to the court and that, therefore, the union's objections were barred by section 7123(c) of the Statute, which prohibits a court from considering objections not first raised to the Authority unless the failure to do so is excused by "extraordinary circumstances." The court rejected the union's argument that its failure should be excused because there had been simultaneous briefing in the case and the union could not anticipate the agency's arguments. The court noted that the union did not seek to file a reply brief with the Authority nor did it request reconsideration of the Authority's decision.
Brief for the Federal Labor Relations Authority
The First Circuit affirmed the Authority's determination that an agency's refusal to bargain over a proposal for official time for lobbying did not violate the Statute. The Authority had ruled that the proposal was inconsistent with a prohibition in the agency's Appropriations Act. The court agreed with the Authority's interpretation of the Appropriations Act and affirmed the Authority's holding that the proposal was inconsistent with federal law and therefore not within the agency's duty to bargain.
Brief for the Federal Labor Relations Authority
The Ninth Circuit granted the Agency's petition for review of an Authority decision holding that the Agency violated section 7114(a)(2)(A) by not providing the union with notice and opportunity to be represented at a "formal discussion." The Authority had determined that a meeting in which a bargaining unit employee and the Agency settled an EEO complaint was a "formal discussion" within the meaning of section 7114(a)(2)(A), and, therefore, the union had the right to be represented. The 9th Circuit disagreed, noting that a "formal discussion" must involve a "grievance" and holding that a complaint brought pursuant to EEOC procedures was not a "grievance" within the meaning of section 7114(a)(2)(A).
Brief for the Federal Labor Relations Authority; Respondent's Petition For Rehearing and Suggestion For Rehearing En Banc; Petition For a Writ of Certiorari To The United States Court of Appeals For The Ninth Circuit
The
Mississippi State Guard appeals a district court decision dismissing
their complaint. In the district court proceeding, the Guard
sought to enjoin an election directed by the Authority in a unit of
dual-status technicians.
Brief for the Federal Labor Relations Authority
The Supreme Court affirmed the Authority's (50 FLRA 601 (1995)) and the Eleventh Circuit's decisions (FLRA v National Aeronautics and Space Administration, Washington, D.C., 120 F.3d 1208 (11th Cir. 1997)) that an Office of the Inspector General (OIG) investigator is a "representative of the agency" when examining a bargaining unit employee who reasonably fears that discipline might result from the examination. Relying on the language of the Statute and the Authority's interpretation in 50 FLRA 601, the court rejected NASA's argument that "representative" is limited to the entity that collectively bargains with the union. The court also held that the Authority's decision is consistent with the Inspector General Act, which provides that an agency's OIG investigators are "employed by, act on behalf of, and operate for the benefit of" that agency.
Brief for the Federal Labor Relations Authority
The Supreme Court remanded the 4th Circuit's decision in United States Dep't of the Interior v. FLRA, 132 F.3d 157 (4th Cir. 1997), in which the 4th Circuit held that the Agency had no obligation to bargain endterm over a collective bargaining agreement provision to permit negotiations over Union-initiated midterm proposals. Regarding the issue of midterm bargaining, the Supreme Court concluded that the Authority's interpretation of the Statute is entitled to deference and vacated the Fourth Circuit's decision that an agency is not obligated to bargain over a proposal, offered during term negotiations, that would require it to engage in union-initiated midterm bargaining. The court rejected the Fourth Circuit's premise that the Statute imposes no obligation on Federal agencies to bargain midterm and held that the Statute was "sufficiently ambiguous" as to require deference to the Authority's interpretation. The court stated that it was up to the Authority to determine "whether, when, where, and what sort of midterm bargaining is required." The court remanded the case to the Fourth Circuit, which, in turn, remanded the case to the Authority for proceedings consistent with the opinion of the Supreme Court.
Brief for the Federal Labor Relations Authority
The D.C. Circuit denied, per curiam, the union petition for review of an Authority decision setting aside an arbitration award. The arbitrator had found that the agency committed a ULP and a contract violation by changing a past practice without providing the union an opportunity to bargain. The court agreed with the Authority that the union had received adequate notice that the agency was changing its overtime policy. Brief for the Federal Labor Relations Authority
Patent Office Professional Association v. FLRA, No. 01-1271 (D.C. Cir. Apr. 30, 2002)[unpublished decision]
The D.C. Circuit dismissed the union's petition for review of an Authority decision
and order finding that the agency committed unfair labor practices by
refusing to bargain over various union-initiated proposals. The
union's petition for review contested only the Authority's statement, in
dicta, that no comprehensive collective bargaining
agreement existed between the union and the agency. The
court held that the union was not "aggrieved" within the
meaning of section 7123(a) of the Statute because the Authority's order provided the union with "all of the
substantive relief that was necessary to address the agency's unlawful
refusal to bargain." Accordingly, the court found the union
did not have standing to file a petition for review and dismissed the
case for lack of jurisdiction. 57 FLRA
185 (2001)
Brief for the Federal Labor Relations Authority
The D.C. Circuit dismissed the union's petition for review of a decision of the FLRA General Counsel declining to issue a ULP complaint, on the ground that the court lacked jurisdiction under section 7123 of the Statute. In its decision, the D.C. Circuit reaffirmed its ruling in Turgeon v. FLRA, 677 F.2d 937 (D.C. Cir. 1982), where the court flatly declared that it had no jurisdiction to review decisions by the FLRA General Counsel declining to issue ULP complaints because such decisions do not constitute final agency orders under section 7123. To avoid any "lingering confusion," the court indicated that the Supreme Court's intervening decision in Heckler v. Chaney, 470 U.S. 821 (1985), did not change the law of the D.C. Circuit regarding the nonreviewability of the FLRA General Counsel's decisions.
Brief for the Federal Labor Relations Authority
The D.C. Circuit denied an individual's petition for review of an Authority decision dismissing a ULP complaint alleging that he had been terminated in retaliation for exercising rights protected by the Statute. Agreeing with the Authority, the court held that Power's termination resulted not from anti-union animus but from his insubordinate conduct. The court also found that Power's claim of impermissible bias on the part of an Authority member was both meritless and precluded under section 7123(c).
Brief for the Federal Labor Relations Authority
The D.C. Circuit granted the agency's petition for review and
reversed the Authority's order that an Agency pay post-judgment
interest on liquidated damages awarded employees through arbitration
under the Fair Lagood morbor Standards Act. The Authority had ruled
that such interest was permissible under the Back Pay Act. The D.C.
Circuit disagreed, holding that liquidated damages are not "pay,
allowances, or differentials" within the meaning of the Act.
Brief for the Federal Labor Relations Authority
The Tenth Circuit dismissed the agency’s petition for review of an
unexcepted-to-ALJ decision for lack of subject matter jurisdiction and enforced
the Authority’s order adopting the ALJ decision. The Authority found a
ULP for an agency's failure to provide the union with notice and an
opportunity to represent bargaining unit employees at a formal
discussion concerning the investigation of formal EEO complaints. The
agency's exceptions to the ALJ's recommended decision were rejected as
untimely filed.
Brief for the Federal Labor Relations Authority
Cross Reply Brief for the Federal Labor Relations Authority
The Ninth Circuit reversed and remanded an FLRA decision ordering the
agency to bargain in good faith over a proposal on Sunday premium pay.
Although employees had been paid Sunday premium pay prior to August 19,
1972, the agency argued there was no obligation to negotiate on the
payment since it was not negotiated by the parties prior to that time,
but rather made under the mistaken belief they were required by law.
Rejecting this argument, the FLRA found that the listing of Sunday
premium pay in the parties’ agreement was evidence that they had
engaged in the negotiation process on this matter prior to August 19,
1972, and therefore according to § 704 of the Civil Service Reform
Act of 1978, it was still negotiable. The Ninth Circuit, however,
disagreed finding the actual process of negotiating would have meant the
parties had to engage in some discussion prior to August 19, 1972 on the
particular terms of Sunday premium or whether to pay it in order to meet
the requirements of § 704 and, there was no evidence of that here.
Brief for the Federal Labor Relations Authority
The D.C. Circuit denied an agency's petition for review of an Authority decision in a section 7114(b)(4) information case. The Authority had ruled that the Agency committed a ULP by failing to provide the union with certain disciplinary records the union had requested in connection with a proposed removal. The court found that the union was acting as an "exclusive representative" under the Statute, notwithstanding the fact that the union had chosen to represent an employee at the oral reply stage of the disciplinary process. The court also agreed with the Authority that the requested information was "necessary" at the oral reply stage of the proposed removal action because the union needed the documents concerning how the Agency disciplined other employees to assess whether the proposed punishment was appropriate. The court therefore agreed with the Authority that the Agency committed a ULP by refusing the union's request for the disciplinary records.
Brief for the Federal Labor Relations Authority
U.S. Department of Justice, Washington, D.C. and U.S. Department of Justice, Office of the Inspector General, Washington, D.C. v. FLRA, 266 F.3d 778 (D.C. Cir. 2001), reviewing 56 FLRA 556 (2000).
The D.C. Circuit denied the agency's and its Inspector General's petition for review of an
Authority decision finding an unfair labor practice when Office of the Inspector General (OIG)
agents denied an employee's request for union representation in a
criminal investigation. The union representing the employee filed
an unfair labor practice charge, claiming that the agents' denial of the
employee's request to have union representation was in violation of 5
U.S.C. 7114(a)(2)(B), which requires an agency to give an employee
the opportunity to have a union representative at an interrogation under
certain circumstances. The FLRA found that the OIG agents had violated
the Statute by not granting the employee's request for representation
based on the Supreme Court's holding in NASA v. FLRA,
527
U.S. 229 (1999) (NASA), that OIG agents are
"representatives" of their respective agencies. The D.C.
Circuit agreed that the NASA decision controlled, finding no
distinction in NASA between administrative and criminal
investigations with regard to whether OIG agents are
"representatives" of agencies.
Brief for the Federal Labor Relations Authority
The D.C. Circuit granted the agency's petition for review, denied the Authority's application for enforcement, and remanded to the Authority for further proceedings. The Authority had found negotiable a proposal that Air Traffic Assistants be eligible for "familiarization" flights on commercial airlines. The Authority stated that the agency's "bare assertion that the proposal conflicts with a Government-wide regulation . . . did not establish that the proposal is outside the duty to bargain." The Authority found that, by failing to offer specific arguments and regulations, the agency did not carry its burden of creating a record upon which the Authority could make a negotiability determination. The court held that the Authority should have addressed the substance of the agency's objection because the agency's "position and authority are easily understood." The court also noted that if the Authority found the agency's submission "too oblique," it could have requested additional briefing or held a hearing to amplify the Agency's argument.
Brief for the Federal Labor Relations Authority
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