ORAL ARGUMENT NOT REQUESTED
IN THE UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
No. 01-9517
_______________________________
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO, LOCAL 1592,
Petitioner
v.
FEDERAL LABOR RELATIONS AUTHORITY,
Respondent
_______________________________
ON PETITION FOR REVIEW 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 1
STATEMENT OF THE CASE 2
STATEMENT OF THE FACTS 2
A. Pertinent Negotiability Appeals Procedures 2
B. The Proceeding And The Authority's Order Under Review 3
STANDARD OF REVIEW 5
SUMMARY OF ARGUMENT 5
ARGUMENT 7
THE AUTHORITY PROPERLY DISMISSED THE UNION'S PETITION FOR REVIEW OF A FEDERAL
EMPLOYMENT COLLECTIVE BARGAINING DISPUTE BECAUSE THE UNION FAILED AND REFUSED TO
SERVE THE AGENCY HEAD AS REQUIRED BY THE STATUTE AND THE AUTHORITY'S REGULATIONS
7
A. Service on the Secretary of Defense As The "Head of the Agency" Is a
Nondiscretionary Mandate of the Statute 7
B. Local 1592's Arguments are Without Merit 8
1. Practices under Other Federal Employment Appeals Processes Are Not Relevant to
Interpreting the Express Terms of the Statute 9
2. Dismissal of Local 1592's Petition Was Not Arbitrary and Capricious 11
a. There Is No Prejudice Because Parties Are Provided Notice and Opportunity
to Cure Service Defects 11
b. The Authority Applies its Procedural Rules in a Consistent Manner 13
CONCLUSION 15
CERTIFICATION PURSUANT TO FRAP RULE 32 AND CIRCUIT RULE 32 16
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
Relevant orders of the Federal Labor Relations Authority B-1
TABLE OF AUTHORITIES
CASES
Am. Fed'n of Gov't Employees, Local 2343 v. FLRA, 144 F.3d 85
(D.C. Cir. 1998) 5
Am. Fed'n of Gov't Employees, Local 1592 v. FLRA, 744 F.2d 73
(10th Cir. 1984) 5
Baldwin County Welcome Ctr. v. Brown, 466 U.S. 147 (1979) 14
Bureau of Alcohol, Tobacco and Firearms v. FLRA, 464 U.S. 89
(1983) 5
Colautti v. Franklin, 439 U.S. 379 (1979) 7, 8
Defense Criminal Investigative Serv. v. FLRA, 855 F.2d 93
(3rd Cir. 1988) 8
FLRA v. Aberdeen Proving Grounds, Dep't of the Army,
485 U.S. 409 (1988) 2
Hooper v. Nat'l Transp. Safety Bd., 503 U.S. 249 (1992) 5
Mountain Solutions, Ltd. v. FLRA, 197 F.3d 512 (D.C. Cir. 1999) 5, 13
Stenberg v. Carhart, 20 S.Ct. 2597 (2000) 7
United States Dep't of Energy v. FLRA, 880 F.2d 1163 (10th Cir. 1989) 5
DECISIONS OF THE FEDERAL LABOR RELATIONS AUTHORITY
Ass'n of Civilian Technicians, Pennsylvania State Council,
54 F.L.R.A. 552 (1998) 12
Int'l Fed'n of Prof'l and Technical Eng'rs, 20 F.L.R.A. 786 (1985) 12
Nat'l Fed'n of Fed. Employees, Local 122, 47 F.L.R.A. 1118 (1993) 12
Nat'l Fed'n of Fed. Employees, Local 341, 40 F.L.R.A. 1009 (1991),
denying reconsideration of 39 F.L.R.A. 1272 (1991) 13, 14
Nat'l Treasury Employees Union, 46 F.L.R.A. 211 (1992) 12
Nat'l Union of Compliance Officers, 7 F.L.R.A. 10 (1981) 12
STATUTES
Federal Service Labor-Management Relations Statute,
5 U.S.C. §§ 7101-7135 (2000) 1
5 U.S.C. § 7103(a) 7, 11
5 U.S.C. § 7103(a)(1) 8
5 U.S.C. § 7103(a)(3) 4, 6
5 U.S.C. § 7105(a)(2)(E) 1
5 U.S.C. § 7117(c) 2, 13
5 U.S.C. § 7117(c)(2)(B) passim
5 U.S.C. § 7123(a) 1
5 U.S.C. § 101 4, 6, 8
5 U.S.C. § 102 4, 6, 8, 10
5 U.S.C. § 103 4, 8
5 U.S.C. § 104 4, 8
5 U.S.C. § 105 4, 6, 8, 10
5 U.S.C. § 5721(1) 6, 8
5 U.S.C. § 6121(1) 6, 8
5 U.S.C. § 7531 6, 8
5 U.S.C. § 7701 4
5 U.S.C. § 7701(a)(2) 10
10 U.S.C. § 113(a) 8
42 U.S.C. § 2000e-16(a) 4, 10
42 U.S.C. § 2000e-16(c) 10
CODE OF FEDERAL REGULATIONS
5 C.F.R. § 1201.26(b) 10
5 C.F.R. § 2421.2(a) 4, 11
5 C.F.R. pt. 2424 2
5 C.F.R. § 2424.2(g) 2, 4, 11
5 C.F.R. § 2424.22(d) 2, 4
STATEMENT REGARDING PRIOR OR RELATED APPEALS
The case on review has not previously been before this Court or any other
court. Counsel for the Authority is unaware of any cases pending before
this Court or any other which are related to this case within the meaning of
Local Rule 28.2(C)(1) of this Court. IN THE UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
No. 01-9517
_______________________________
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO, LOCAL 1592,
Petitioner
v.
FEDERAL LABOR RELATIONS AUTHORITY,
Respondent
_______________________________
ON PETITION FOR REVIEW 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 8, 2001. The Authority exercised
jurisdiction over the case pursuant to § 7105(a)(2)(E) of the Federal
Service Labor-Management Relations Statute, 5 U.S.C. §§ 7101-7135 (2000)
(Statute).[1] This Court has jurisdiction to review the Authority's final
orders pursuant to § 7123(a) of the Statute.
STATEMENT OF THE ISSUE
Did the Authority properly dismiss the union's petition for review of a
federal employment collective bargaining dispute because the union failed
and refused to serve the agency head as required by the Statute and the
Authority's regulations.
STATEMENT OF THE CASE
Pursuant to § 7117(c) of the Statute, the American Federation of Government
Employees, AFL-CIO, Local 1592 (Local 1592) filed with the Authority a
petition for review of a collective bargaining dispute. The dispute
concerned a federal employer's contention that its duty to bargain did not
extend to a proposal Local 1592 had submitted for negotiation. Local 1592
did not serve a copy of the petition on the "head of the agency," the
Secretary of Defense, as required by 5 U.S.C. § 7117(c)(2)(B). The
Authority issued a Notice and Order to Show Cause, advising Local 1592 of
this procedural defect, and providing Local 1592 with an opportunity to
effect proper service. When Local 1592 made no attempt to effect proper
service in response to the Notice and Order to Show Cause, the Authority
dismissed the petition. Local 1592 seeks review of the Authority's order.
STATEMENT OF THE FACTS
A. Pertinent Negotiability Appeals Procedures
In recognition of the special requirements and needs of government, the
Statute exempts certain matters from the Statute's otherwise broad
obligation to bargain over conditions of employment. See FLRA v. Aberdeen
Proving Grounds, Dep't of the Army, 485 U.S. 409, 410 (1988). The Statute
further provides that if a federal employer alleges that its duty to bargain
does not extend to a particular matter, the union may appeal that allegation
to the Authority. 5 U.S.C. § 7117(c). These appeals are processed
according to the provisions of § 7117(c) of the Statute and part 2424 of the
Authority's regulations, 5 C.F.R. pt. 2424 (2001).
As particularly pertinent to this case, by statute, the petitioning union
must furnish a copy of its negotiability appeal to the "head of the agency."
5 U.S.C. § 7117(c)(2)(B). This service requirement is repeated in the
Authority's regulations. 5 C.F.R. §§ 2424.2(g), 2424.22(d).
B. The Proceeding and the Authority's Order under Review
Local 1592 is the exclusive representative of a unit of civilian employees
at Hill Air Force Base, Utah (Hill AFB). In the course of collective
bargaining, Hill AFB declared that certain bargaining proposals submitted by
the union were outside the obligation to bargain under the Statute. Local
1592 thereafter filed a negotiability appeal with the Authority.
After resolving some initial procedural issues, including the dismissal and
subsequent reinstatement of Local 1592's negotiability appeal, the Authority
attempted to rectify a procedural deficiency in the case involving service
of the appeal on the "head of the agency." See Add. B-1 to B-17.[2]
Specifically, in its Notice of Reinstatement and Order to Cure Procedural
Deficiency (Reinstatement Order), the Authority advised Local 1592 that it
had not served the "head of the agency," the Secretary of Defense, as
required by the Statute and the Authority's regulations. Add. B-13 to B-14.
Citing a previous order in the proceeding, the Authority once again provided
Local 1592 with the opportunity to properly serve the Secretary of Defense
or his designee, whom the Authority's order identified. Add. B-14.
Local 1592 refused to effect the service directed by the Authority. Rather
than comply with the Authority's order, Local 1592 responded by contending
that service on the Secretary of Defense was unnecessary and that service on
the Secretary of the Air Force satisfied the statutory and regulatory
requirements. Add. B-18.
On April 12, 2001, the Authority issued another Notice and Order to Show
Cause. Add. B-18 to B-20. The Authority again advised Local 1592 that
service on "the head of the agency" is an explicit requirement of § 7117(c)
(2)(B) of the Statute. Add. B-19. In addition, the Authority explained
that the Statute's definition of "agency" includes the Department of
Defense, but not the Department of the Air Force (citing 5 U.S.C. §§ 101,
103, 104, 105, 7103(a)(3)). The Authority also explained that the
Authority's regulations reiterate the statutory service requirements and
incorporate by specific reference the Statute's definition of "agency"
(citing 5 C.F.R. §§ 2421.2(a), 2424.2(g), 2424.22(d)). Id.
Further, the Authority commented in detail on Local 1592's reliance on the
practices of the Merit Systems Protection Board (MSPB) and the Equal
Employment Opportunity Commission (EEOC). The Authority found Local 1592's
reliance misplaced. Add. B-19. With respect to the MSPB, the Authority
noted that the MSPB's enabling statute does not set forth any service
requirements (citing 5 U.S.C. § 7701). Id. Regarding the EEOC, the
Authority pointed out that, unlike the Statute, the EEOC's enabling statute
does not contain a definition of "agency" that excludes the military
departments. Id. To the contrary, the Authority observed that the EEOC's
enabling statute expressly gives the military departments parity with
executive agencies for some purposes by explicitly extending employment
discrimination prohibitions not only to "'executive agencies as defined in
section 105 of title 5,'" but also to "'military departments as defined in
section 102 of title 5 '" (quoting from 42 U.S.C. § 2000e-16(a)). Add.
B-19 to B-20.
Attempting to eliminate the one remaining procedural impediment to
processing Local 1592's negotiability appeal, the Authority provided Local
1592 with an additional opportunity to serve the Secretary of Defense or his
designee. Add. B-20. When Local 1592 did not respond, the Authority was
compelled to dismiss the negotiability appeal. The Authority's order was
dated May 8, 2001. Add. B-23.
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" when it interprets and applies the
Statute's provisions. Am. Fed'n of Gov't Employees, Local 1592 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, or 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)).
Reviewing courts also grant a high degree of deference to an administrative
agency's strict application of its procedural requirements. See Mountain
Solutions, Ltd. v. FCC, 197 F.3d 512, 517 (D.C. Cir. 1999) (Mountain
Solutions) (holding that an agency's strict construction of a procedural
rule in the face of a waiver request is insufficient evidence of an abuse of
discretion). The burden to show an abuse of discretion "is a heavy one."
Id. 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) (holding that an agency may enforce a rule as strictly as
it pleases as long as it does so uniformly).
SUMMARY OF ARGUMENT
The Court should uphold the Authority's order in this federal employment
dispute, dismissing Local 1592's negotiability appeal. The Authority
dismissed Local 1592's appeal because Local 1592 failed to comply with a
mandatory statutory requirement that such appeals be served on "the head of
the agency" involved in the dispute. Local 1592's appeal was dismissed only
after Local 1592 repeatedly refused to obey the Authority's order that the
appeal be served on the Secretary of Defense or the Secretary's designee.
The Authority's order was based on a reasonable and correct interpretation
of the Authority's enabling legislation. The language and structure of the
Statute make it clear that Local 1592 was required to serve its appeal on
the Secretary of Defense as "the head of the agency," not on the Secretary
of the Air Force as Local 1592 insists. The Statute, part of Title 5 of the
U.S. Code, expressly defines the term "agency" as an "Executive agency." 5
U.S.C. § 7103(a)(3). "Executive agency" is, in turn, defined as an
"Executive department, a Governmental corporation and an independent
establishment." 5 U.S.C. § 105. The Department of Defense, but not the
Department of the Air Force, is included in Title 5's exhaustive list of
Executive Departments. 5 U.S.C. § 101. In addition, not only is the
Department of the Air Force omitted from the list of "Executive
departments;" rather, it is specifically identified as a "Military
department" in a different code section, 5 U.S.C. § 102. In those few
instances in Title 5 where Congress has intended to extend the definition of
"agency" to include Military departments, it has done so explicitly. See,
e.g., 5 U.S.C. §§ 5721(1), 6121(1), 7531.
Foregoing reliance on the language of the Statute itself, Local 1592
mistakenly points to other statutory schemes to support its contention that
the Secretary of Defense should not be considered the "head of the agency"
under § 7117(c)(2)(B) of the Statute. However, and in stark contrast to §
7117's requirements, these other statutory provisions, governing federal
employee appeals to the Equal Employment Opportunity Commission and to the
Merit Systems Protection Board, either do not prescribe specific service
requirements, or contain provisions dealing explicitly with the status of
military departments in the administrative process.
Lastly, the Authority's order was not arbitrary or capricious.
Specifically, Local 1592 was not prejudiced by the manner in which the
Authority's applied the mandatory "agency head" service requirement of §
7117(c)(2)(B) of the Statute and the Authority's own regulations. The
Authority's regulations provide adequate legal notice of the Statute's
requirement that negotiability appeals be served on "the head of the
agency." Moreover, following its consistent practice, the Authority only
dismissed Local 1592's appeal after Local 1592 refused to take advantage of
the opportunity provided by the Authority for the Local to preserve its
appeal by curing the appeal's statutory service defect. Local 1592 has only
its own intransigence to blame for the Authority's subsequent dismissal of
the Local's appeal. The Court should uphold the Authority's enforcement of
the mandatory statutory requirement that Local 1592 refused to obey, and
deny Local 1592's petition for review.
ARGUMENT THE AUTHORITY PROPERLY DISMISSED THE UNION'S PETITION FOR REVIEW OF A
FEDERAL EMPLOYMENT COLLECTIVE BARGAINING DISPUTE BECAUSE THE UNION FAILED AND
REFUSED TO SERVE THE AGENCY HEAD AS REQUIRED BY THE STATUTE AND THE AUTHORITY'S
REGULATIONS
A. Service on the Secretary of Defense as the "Head of the Agency" Is a
Nondiscretionary Mandate of the Statute
The statutory analysis upon which the Authority relied is straightforward
and definitive. Section 7117(c)(2)(B) of the Statute provides that as part
of instituting a negotiability appeal, a union must furnish a copy of its
petition to "the head of the agency." Section 7103(a) defines terms used in
the Statute, including the term "agency." This is particularly significant
in this case, because it is axiomatic that where a statute includes an
explicit definition, that definition must be followed, even if it varies
from the term's ordinary meaning. Stenberg v. Carhart, 120 S. Ct. 2597,
2615 (2000); see also Colautti v. Franklin, 439 U.S. 379, 392-93 n.10 (1979)
("A definition which declares what a term means . . . excludes any meaning
that is not stated.") .
Section 7103(a)(3) defines "agency" as "an Executive agency." For the
purposes of Title 5 of the United States Code, "Executive agency" is defined
as an "Executive department, a Governmental corporation and an independent
establishment." 5 U.S.C. § 105. These terms also have explicit statutory
definitions. See 5 U.S.C. §§ 101, 103, 104. As pertinent here, 5 U.S.C. §
101 sets forth a list of Executive departments. The list includes the
Department of Defense, but none of its subordinate components. Accordingly,
the relevant agency in this case is the Department of Defense. See, e.g.,
Defense Criminal Investigative Serv. v. FLRA, 855 F.2d 93, 98 (3rd Cir.
1988) (holding that under the Statute, the Department of Defense, not a
subordinate component, is the "agency"). As the "head" of the Department of
Defense is the Secretary of Defense, 10 U.S.C. § 113(a), section 7117(c)(2)
(B) required that Local 1592 serve a copy of its petition on the Secretary
of Defense.
It is equally clear that the Department of the Air Force is not an "agency"
within the meaning of section 7103(a)(1) of the Statute. The Department of
the Air Force is plainly not an "Executive department." Instead, the Air
Force is expressly listed in 5 U.S.C. § 102 as a "Military department."
Where Congress has intended to extend the definition of "agency" to include
Military departments, it has done so explicitly. See, e.g., 5 U.S.C. §§
5721(1), 6121(1), 7531. It has not done so in the Statute.
B. Local 1592's Arguments are Without Merit
Local 1592 does not take issue with the Authority's analysis of the plain
statutory language. Rather, Local 1592 relies (Brief (Br.) at 8-9) on other
distinctly different statutory schemes to support its contention that the
Secretary of the Air Force should be considered the "head of the agency"
under § 7117(c)(2)(B) of the Statute. In addition, Local 1592 contends (Br.
at 9-12) that the Authority's insistence on service on the Secretary of
Defense is arbitrary and capricious. However, none of Local 1592's
arguments withstand scrutiny.[3]
1. Practices under Other Federal Employment Appeals Processes Are Not
Relevant to Interpreting the Express Terms of the Statute
As the Authority properly held in its Notice and Order to Show Cause dated
April 13, 2001, Local 1592's reliance on the practices of the EEOC and the
federal courts in processing discrimination complaints, and on the practices
of the MSPB in processing other employment appeals, is misplaced. As
demonstrated in Section A., above, the Authority's enabling Statute
specifically mandates the service requirement that the Authority was
compelled to enforce in this case. Accordingly, procedural requirements of
other adjudicatory agencies, under different statutory schemes, are
irrelevant and provide no support for Local 1592's position.
Local 1592 ignores the fact that, unlike the Statute, neither the statutory
provisions governing discrimination complaints in the federal sector, nor
those concerning employee appeals to the MSPB, prescribe specific service
requirements. Thus, they contain nothing comparable to the express
congressional determination regarding service of documents on "the head of
the agency" that the Authority was required to enforce in this case. These
other statutory schemes therefore have no direct relevance to the issue of
whether the Authority has reasonably interpreted and applied the specific
service requirements of § 7117(c)(2)(B) of the Statute.
Moreover, Local 1592 ignores other critical distinctions between the laws
involved. Unlike the Authority's Statute, the EEOC's statutory provisions
do not contain a definition of "agency" that excludes the military
departments. To the contrary, the EEOC's enabling statute expressly gives
the military departments parity with executive agencies for some purposes,
by explicitly extending employment discrimination prohibitions not only to
"executive agencies as defined in section 105 of title 5," but also to
"military departments as defined in section 102 of title 5." 42 U.S.C. §
2000e-16(a). Consistent with this equivalent treatment of "executive
agencies" and "military departments," section 2000e-16(c) expressly requires
that "the head of the department, agency, or unit, as appropriate, shall be
the defendant" in any civil action. 42 U.S.C. § 2000e-16(c). Thus, the
EEOC's distinctly different statutory framework, giving particular
recognition to military departments as defined in 5 U.S.C. § 102, makes
EEOC practices with respect to the party status of military departments
irrelevant as an aid to construing the Statute's service requirements
pertaining to the "head of the agency."
Local 1592's reliance on MSPB practices is similarly misplaced. The MSPB's
enabling statute provides few, if any, procedural requirements. Rather,
appeals to the MSPB are to be "processed in accordance with regulations
prescribed by the [MSPB]." 5 U.S.C. § 7701(a)(2). The MSPB's regulations,
in turn, do not require appellants to serve copies of their appeals at all.
Instead, the MSPB effects service on "each party to the proceeding other
than the appellant." 5 C.F.R. § 1201.26(b). Thus, nothing in MSPB's
enabling act or its regulations even remotely requires service on the "head
of the agency." Accordingly, even if the MSPB regularly identifies and
serves a military department such as the Department of the Air Force as a
party, such practice is irrelevant to the identification of the appropriate
"head of the agency" under the Statute.[4]
2. Dismissal of Local 1592's Petition Was Not Arbitrary and Capricious
a. There Is No Prejudice Because Parties Are Provided Notice and Opportunity to
Cure Service Defects
Although it knowingly refused to comply with simple and explicit Authority
directions regarding proper service, Local 1592 takes the position (Br. at
10-11) that dismissal of its petition is unfair. Local 1592 complains in
this regard that the Authority's regulations do not inform unions that the
Authority regards the Department of Defense, rather than one of the military
departments, as the "agency" in negotiability appeals. Local 1592's
contention that the Authority has been unfair should be rejected for two
reasons. First, although the Authority's regulations do not explicitly
identify the Secretary of Defense as the agency head in a case like this,
the regulations reiterate, and incorporate by reference, the statutory
provisions that clearly require service on the Secretary of Defense.
Specifically, the regulations expressly restate the statutory requirement
that negotiability appeals be served on the "head of the agency." 5 C.F.R.
§ 2424.2(g). Furthermore, the definitional section of the regulations
provides that the term "agency" as used in the regulations has the meaning
set forth in § 7103(a) of the Statute. 5 C.F.R. § 2421.2(a).
Second and more significant, even if a reasonable question exists concerning
the identity of the "agency head" in a particular case, the Authority has
ensured that no union is prejudiced by following a consistently-applied
practice of allowing petitioning unions to cure service defects when they
arise. The Authority has held that proper service under section 7117(c)(2)
(B) is not a jurisdictional prerequisite in negotiability appeals, and that
failure to accomplish proper service is a curable procedural defect. E.g.,
Nat'l Fed'n of Fed. Employees, Local 122, 47 F.L.R.A. 1118, 1119-20 (1993).
Where a service defect, including a failure to serve the agency head in a
negotiability appeal, occurs, the Authority notifies the party of the defect
and provides a reasonable time for correction. See, e.g., Ass'n of Civilian
Technicians, Pennsylvania State Council, 54 F.L.R.A. 552, 554 n.4 (1998);
Nat'l Treasury Employees Union, 46 F.L.R.A. 211, 214 (1992); Nat'l Union of
Compliance Officers, 7 F.L.R.A. 10 (1981) (Compliance Officers). The
Authority will dismiss a negotiability appeal for failure of proper service
only when, after notice from the Authority, a party fails to correct its
error in the allotted time. See, e.g., Compliance Officers, 7 F.L.R.A. at
10; Int'l Fed'n of Prof'l and Technical Eng'rs, Local 220, 20 F.L.R.A. 786,
786-87 (1985). Accordingly, Local 1592's concerns that lay representatives
of unions will be confused to their detriment by the Statute's service
requirements are baseless.
Indeed, this is precisely the procedural posture of this case. In a Notice
and Order to Show Cause, dated October 17, 2001, issued at the beginning of
the proceeding, the Authority informed Local 1592 that its petition failed
to comply with the Authority's service requirement and provided explicit
instructions on how to remedy the defect. Add. B-2. The Authority again
informed Local 1592 of the service deficiency and of the actions required to
cure the defect in the Authority's Reinstatement Order dated March 8, 2001.
Add. B-13 to B-15. Finally, after Local 1592 explicitly refused to comply,
Add. 18, the Authority on April 13, 2001, issued another Notice and Order to
Show Cause, specifically explaining why service on the Secretary of the Air
Force did not satisfy the statutory requirement to serve the head of the
agency, and providing Local 1592 one more opportunity to serve the Secretary
of Defense in order to avoid dismissal of the petition. Add. B-19 to B-20.
Only after Local 1592 once more declined to abide by the Authority's order
was the negotiability petition dismissed. Add. B-23. Thus, the Authority's
patient and constructive actions in the face of Local 1592's intransigence
rebut any suggestion that the "head of the agency" service requirements of
the Statute, as construed and applied by the Authority, operate in a
prejudicial manner with respect to unions filing negotiability appeals under
section 7117(c) of the Statute.
b. The Authority Applies its Procedural Rules in a Consistent Manner
Only where an agency has inconsistently applied a procedural rule will a
reviewing court find that the agency abused its discretion in such matters.
Mountain Solutions, 197 F.3d at 517. There is no evidence that the
Authority has in any way inconsistently applied the service requirements of
section 7117(c)(2)(B). As explained in Section (B)(1)(a) above, when faced
with a union's failure to serve the agency head as required by the Statute,
the Authority has adopted a consistently-applied practice of notifying
unions of the defect, and providing a reasonable time for correction.
However, where a party fails to timely correct the deficiency, the Authority
will dismiss the petition.
The Authority's decision in Nat'l Fed'n of Fed. Employees, Local 341, 40
F.L.R.A. 1009 (1991) (NFFE) (denying reconsideration of 39 F.L.R.A. 1272),
cited but incompletely described by Local 1592 (Br. at 9-10), is not to the
contrary. Specifically, the procedural posture of NFFE was distinguishable
from that in the instant case. Contrary to Local 1592's suggestion (Br. at
9-10), the Authority did not hold in NFFE that the Authority's notice to the
agency head was a sufficient basis upon which to forgive a union's failure
to comply with all statutory and regulatory service requirements.
In its initial decision in NFFE, the Authority decided the merits of the
negotiability appeal for the union, noting that the employer had not filed a
statement of position in response to the union's appeal. 39 F.L.R.A. at
1273-75. A subsequent request for reconsideration argued that the agency
head never received a copy of the union's appeal. However, and unlike the
instant case, the negotiability petition filed by the union in NFFE
satisfied all statutory and regulatory requirements, including a certificate
of service showing service on the agency head. 40 F.L.R.A. at 1010. The
Authority held that in light of that fact and that the Authority had put the
agency head's designee on notice that a petition had been filed, the agency
had adequate knowledge and an opportunity to raise issues concerning either
the merits of the appeal or the propriety of service. Id. at 1011.
Although the agency head in the instant case received notice from the
Authority that a petition had been filed, in stark contrast to the properly
filed petition in NFFE, Local 1592 concedes that, despite numerous
opportunities to correct its defect, it has willfully refused to comply with
the Statute and the Authority's orders. See Baldwin County Welcome Ctr. v.
Brown, 466 U.S. 147, 152 (1984) (holding that although absence of prejudice
is a factor to be considered in waiving procedural requirements once another
factor that might justify a waiver is identified, absence of prejudice is
not an independent basis for sanctioning deviations from established
procedures). Local 1592 therefore has only its own inflexibility to blame
for the dismissal of its negotiability appeal.
CONCLUSION
The union's petition for review should be denied.
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
September 27, 2001
CERTIFICATION PURSUANT TO FRAP RULE 32 AND CIRCUIT 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 4233 words.
___________________________
James F. Blandford
September 27, 2001
ADDENDUM A
1. 5 U.S.C. § 7103(a) A-1
2. 5 U.S.C. § 7105(a)(2) (E) A-5
3. 5 U.S.C. § 7117(c) A-6
4. 5 U.S.C. § 7123(a) A-7
5. 5 U.S.C. § 101 A-8
6. 5 U.S.C. § 102 A-9
7. 5 U.S.C. § 103 A-10
8. 5 U.S.C. § 104 A-11
9. 5 U.S.C. § 105 A-12
10. 5 U.S.C. § 5721(1) A-13
11. 5 U.S.C. § 6121(1) A-14
12. 5 U.S.C. § 7701 A-15
13. 10 U.S.C. § 113(a) A-19
14. 42 U.S.C. § 2000-16(a), (e) A-20
15. 5 C.F.R. 1201.26(b) A-21
16. 5 C.F.R. 2421.2(a) A-22
17. 5 C.F.R. 2424.2 A-23
18. 5 C.F.R. 2424.22(d) A-24 § 7103. Definitions; application
(a) For the purpose of this chapter-
(1) "person" means an individual, labor organization, or agency;
(2) "employee" means an individual-
(A) employed in an agency; or
(B) whose employment in an agency has ceased because of any unfair labor
practice under section 7116 of this title and who has not obtained any other
regular and substantially equivalent employment, as determined under
regulations prescribed by the Federal Labor Relations Authority;
but does not include-
(i) an alien or noncitizen of the United States who occupies a position
outside the United States;
(ii) a member of the uniformed services;
(iii) a supervisor or a management official;
(iv) an officer or employee in the Foreign Service of the United States
employed in the Department of State, the International Communication Agency,
the Agency for International Development, the Department of Agriculture, or
the Department of Commerce; or
(v) any person who participates in a strike in violation of section 7311 of
this title;
(3) "agency" means an Executive agency (including a nonappropriated fund
instrumentality described in section 2105(c) of this title and the Veterans'
Canteen Service, Department of Veterans Affairs), the Library of Congress,
the Government Printing Office, and the Smithsonian Institution, but does
not include-
(A) the General Accounting Office;
(B) the Federal Bureau of Investigation;
(C) the Central Intelligence Agency;
(D) the National Security Agency;
(E) the Tennessee Valley Authority;
(F) the Federal Labor Relations Authority;
(G) the Federal Service Impasses Panel; or
(H) the United States Secret Service and the United States Secret Service
Uniformed Division.
(4) "labor organization" means an organization composed in whole or in part
of employees, in which employees participate and pay dues, and which has as
a purpose the dealing with an agency concerning grievances and conditions of
employment, but does not include-
(A) an organization which, by its constitution, bylaws, tacit agreement
among its members, or otherwise, denies membership because of race, color,
creed, national origin, sex, age, preferential or nonpreferential civil
service status, political affiliation, marital status, or handicapping
condition;
(B) an organization which advocates the overthrow of the constitutional form
of government of the United States;
(C) an organization sponsored by an agency; or
(D) an organization which participates in the conduct of a strike against
the Government or any agency thereof or imposes a duty or obligation to
conduct, assist, or participate in such a strike;
(5) "dues" means dues, fees, and assessments;
(6) "Authority" means the Federal Labor Relations Authority described in
section 7104(a) of this title;
(7) "Panel" means the Federal Service Impasses Panel described in section
7119(c) of this title;
(8) "collective bargaining agreement" means an agreement entered into as a
result of collective bargaining pursuant to the provisions 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;
(10) "supervisor" means an individual employed by an agency having authority
in the interest of the agency to hire, direct, assign, promote, reward,
transfer, furlough, layoff, recall, suspend, discipline, or remove
employees, to adjust their grievances, or to effectively recommend such
action, if the exercise of the authority is not merely routine or clerical
in nature but requires the consistent exercise of independent judgment,
except that, with respect to any unit which includes firefighters or nurses,
the term "supervisor" includes only those individuals who devote a
preponderance of their employment time to exercising such authority;
(11) "management official" means an individual employed by an agency in a
position the duties and responsibilities of which require or authorize the
individual to formulate, determine, or influence the policies of the agency;
(12) "collective bargaining" means the performance of the mutual obligation
of the representative of an agency and the exclusive representative of
employees in an appropriate unit in the agency to meet at reasonable times
and to consult and bargain in a good-faith effort to reach agreement with
respect to the conditions of employment affecting such employees and to
execute, if requested by either party, a written document incorporating any
collective bargaining agreement reached, but the obligation referred to in
this paragraph does not compel either party to agree to a proposal or to
make a concession;
(13) "confidential employee" means an employee who acts in a confidential
capacity with respect to an individual who formulates or effectuates
management policies in the field of labor-management relations;
(14) "conditions of employment" means personnel policies, practices, and
matters, whether established by rule, regulation, or otherwise, affecting
working conditions, except that such term does not include policies,
practices, and matters-
(A) relating to political activities prohibited under subchapter III of
chapter 73 of this title;
(B) relating to the classification of any position; or
(C) to the extent such matters are specifically provided for by Federal
statute;
(15) "professional employee" means-
(A) an employee engaged in the performance of work-
(i) requiring knowledge of an advanced type in a field of science or
learning customarily acquired by a prolonged course of specialized
intellectual instruction and study in an institution of higher learning or a
hospital (as distinguished from knowledge acquired by a general academic
education, or from an apprenticeship, or from training in the performance of
routine mental, manual, mechanical, or physical activities);
(ii) requiring the consistent exercise of discretion and judgment in its
performance;
(iii) which is predominantly intellectual and varied in character (as
distinguished from routine mental, manual, mechanical, or physical work);
and
(iv) which is of such character that the output produced or the result
accomplished by such work cannot be standardized in relation to a given
period of time; or
(B) an employee who has completed the courses of specialized intellectual
instruction and study described in subparagraph (A) (i) of this paragraph
and is performing related work under appropriate direction or guidance to
qualify the employee as a professional employee described in subparagraph
(A) of this paragraph;
(16) "exclusive representative" means any labor organization which-
(A) is certified as the exclusive representative of employees in an
appropriate unit pursuant to section 7111 of this title; or
(B) was recognized by an agency immediately before the effective date of
this chapter as the exclusive representative of employees in an appropriate
unit-
(i) on the basis of an election; or
(ii) on any basis other than an election,
and continues to be so recognized in accordance with the provisions of this
chapter;
(17) "firefighter" means any employee engaged in the performance of work
directly connected with the control and extinguishment of fires or the
maintenance and use firefighting apparatus and equipment; and
(18) "United States" means the 50 States, the District of Columbia, the
Commonwealth of Puerto Rico, Guam, the Virgin Islands, the Trust Territory
of the Pacific Islands, and any territory or possession of the United
States.
* * * * * * *
§ 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-
* * * * * * *
(E) resolve issues relating to the duty to bargain in good faith under
section 7117(c) of this title;
* * * * * * *
§ 7117. Duty to bargain in good faith; compelling need; duty to
consult
* * * * * * *
(c)(1) Except in any case to which subsection (b) of this section applies,
if an agency involved in collective bargaining with an exclusive
representative alleges that the duty to bargain in good faith does not
extend to any matter, the exclusive representative may appeal the allegation
to the Authority in accordance with the provisions of this subsection.
(2) The exclusive representative may, on or before the 15th day after the
date on which the agency first makes the allegation referred to in paragraph
(1) of this subsection, institute an appeal under this subsection by-
(A) filing a petition with the Authority; and
(B) furnishing a copy of the petition to the head of the agency.
(3) On or before the 30th day after the date of the receipt by the head of
the agency of the copy of the petition under paragraph (2)(B) of this
subsection, the agency shall-
(A) file with the Authority a statement-
(i) withdrawing the allegation; or
(ii) setting forth in full its reasons supporting the allegation; and
(B) furnish a copy of such statement to the exclusive representative.
(4) On or before the 15th day after the date of the receipt by the exclusive
representative of a copy of a statement under paragraph (3)(B) of this
subsection, the exclusive representative shall file with the Authority its
response to the statement.
(5) A hearing may be held, in the discretion of the Authority, before a
determination is made under this subsection. If a hearing is held, it shall
not include the General Counsel as a party.
(6) The Authority shall expedite proceedings under this subsection to the
extent practicable and shall issue to the exclusive representative and to
the agency a written decision on the allegation and specific reasons
therefor at the earliest practicable date.
* * * * * * *
§ 7123. Judicial review; enforcement
(a) Any person aggrieved by any final order of the Authority other than an
order under-
(1) section 7122 of this title (involving an award by an arbitrator), unless
the order involves an unfair labor practice under section 7118 of this
title, or
(2) section 7112 of this title (involving an appropriate unit
determination),
may, during the 60-day period beginning on the date on which the order was
issued, institute an action for judicial review of the Authority's order in the
United States court of appeals in the circuit in which the person resides or
transacts business or in the United States Court of Appeals for the District of
Columbia.
* * * * * * *
§ 101. Executive departments
The Executive departments are: The Department of State. The Department of the
Treasury. The Department of Defense. The Department of Justice. The Department
of the Interior. The Department of Agriculture. The Department of Commerce. The
Department of Labor. The Department of Health and Human Services. The Department
of Housing and Urban Development. The Department of Transportation. The
Department of Energy. The Department of Education. The Department of Veterans
Affairs.
§ 102. Military departments
The military departments are: The Department of the Army. The Department of the
Navy. The Department of the Air Force.
§ 103. Government corporation
For the purpose of this title -
(1) ''Government corporation'' means a corporation owned or controlled by the
Government of the United States; and
(2) ''Government controlled corporation'' does not include a corporation owned
by the Government of the United States.
§ 104. Independent establishment
For the purpose of this title, ''independent establishment'' means -
(1) an establishment in the executive branch (other than the United States
Postal Service or the Postal Rate Commission) which is not an Executive
department, military department, Government corporation, or part thereof, or
part of an independent establishment; and
(2) the General Accounting Office.
§ 105. Executive agency
For the purpose of this title, ''Executive agency'' means an Executive
department, a Government corporation, and an independent establishment.
§ 5721. Definitions
For the purpose of this subchapter -
(1) ''agency'' means -
(A) an Executive agency;
(B) a military department;
(C) a court of the United States;
(D) the Administrative Office of the United States Courts;
(E) the Library of Congress;
(F) the Botanic Garden;
(G) the Government Printing Office; and
(H) the government of the District of Columbia; but does not include a
Government controlled corporation;
* * * * * * *
§ 6121. Definitions
For purposes of this subchapter -
(1) ''agency'' means any Executive agency, any military department, the
Government Printing Office, and the Library of Congress;
* * * * * * *
§ 7701. Appellate procedures
(a) An employee, or applicant for employment, may submit an appeal to the
Merit Systems Protection Board from any action which is appealable to the
Board under any law, rule, or regulation. An appellant shall have the
right -
(1) to a hearing for which a transcript will be kept; and
(2) to be represented by an attorney or other representative. Appeals
shall be processed in accordance with regulations prescribed by the
Board.
(b)(1) The Board may hear any case appealed to it or may refer the case to
an administrative law judge appointed under section 3105 of this title or
other employee of the Board designated by the Board to hear such cases,
except that in any case involving a removal from the service, the case
shall be heard by the Board, an employee experienced in hearing appeals,
or an administrative law judge. The Board, administrative law judge, or
other employee (as the case may be) shall make a decision after receipt of
the written representations of the parties to the appeal and after
opportunity for a hearing under subsection (a)(1) of this section. A copy
of the decision shall be furnished to each party to the appeal and to the
Office of Personnel Management.
(2)(A) If an employee or applicant for employment is the prevailing party
in an appeal under this subsection, the employee or applicant shall be
granted the relief provided in the decision effective upon the making of
the decision, and remaining in effect pending the outcome of any petition
for review under subsection (e), unless -
(i) the deciding official determines that the granting of such relief is
not appropriate; or
(ii)(I) the relief granted in the decision provides that such employee
or applicant shall return or be present at the place of employment
during the period pending the outcome of any petition for review under
subsection (e); and
(II) the employing agency, subject to the provisions of subparagraph
(B), determines that the return or presence of such employee or
applicant is unduly disruptive to the work environment.
(B) If an agency makes a determination under subparagraph (A)(ii)(II) that
prevents the return or presence of an employee at the place of employment,
such employee shall receive pay, compensation, and all other benefits as
terms and conditions of employment during the period pending the outcome
of any petition for review under subsection (e).
(C) Nothing in the provisions of this paragraph may be construed to
require any award of back pay or attorney fees be paid before the decision
is final.
(3) With respect to an appeal from an adverse action covered by subchapter
V of chapter 75, authority to mitigate the personnel action involved shall
be available, subject to the same standards as would apply in an appeal
involving an action covered by subchapter II of chapter 75 with respect to
which mitigation authority under this section exists.
(c)(1) Subject to paragraph (2) of this subsection, the decision of the
agency shall be sustained under subsection (b) only if the agency's
decision -
(A) in the case of an action based on unacceptable performance described
in section 4303 or a removal from the Senior Executive Service for
failure to be recertified under section 3393a, is supported by
substantial evidence; or
(B) in any other case, is supported by a preponderance of the evidence.
(2) Notwithstanding paragraph (1), the agency's decision may not be
sustained under subsection (b) of this section if the employee or
applicant for employment -
(A) shows harmful error in the application of the agency's procedures in
arriving at such decision;
(B) shows that the decision was based on any prohibited personnel
practice described in section 2302(b) of this title; or
(C) shows that the decision was not in accordance with law.
(d)(1) In any case in which -
(A) the interpretation or application of any civil service law, rule, or
regulation, under the jurisdiction of the Office of Personnel Management
is at issue in any proceeding under this section; and
(B) the Director of the Office of Personnel Management is of the opinion
that an erroneous decision would have a substantial impact on any civil
service law, rule, or regulation under the jurisdiction of the Office;
the Director may as a matter of right intervene or otherwise participate
in that proceeding before the Board. If the Director exercises his right
to participate in a proceeding before the Board, he shall do so as early
in the proceeding as practicable.
Nothing in this title shall be construed to permit the Office to interfere
with the independent decisionmaking of the Merit Systems Protection Board.
(2) The Board shall promptly notify the Director whenever the
interpretation of any civil service law, rule, or regulation under the
jurisdiction of the Office is at issue in any proceeding under this
section.
(e)(1) Except as provided in section 7702 of this title, any decision
under subsection (b) of this section shall be final unless -
(A) a party to the appeal or the Director petitions the Board for review
within 30 days after the receipt of the decision; or
(B) the Board reopens and reconsiders a case on its own motion.
The Board, for good cause shown, may extend the 30-day period referred to in
subparagraph (A) of this paragraph. One member of the Board may grant a
petition or otherwise direct that a decision be reviewed by the full Board.
The preceding sentence shall not apply if, by law, a decision of an
administrative law judge is required to be acted upon by the Board.
(2) The Director may petition the Board for a review under paragraph (1)
of this subsection only if the Director is of the opinion that the
decision is erroneous and will have a substantial impact on any civil
service law, rule, or regulation under the jurisdiction of the Office.
(f) The Board, or an administrative law judge or other employee of the
Board designated to hear a case, may -
(1) consolidate appeals filed by two or more appellants, or
(2) join two or more appeals filed by the same appellant and hear and
decide them concurrently, if the deciding official or officials hearing
the cases are of the opinion that the action could result in the
appeals' being processed more expeditiously and would not adversely
affect any party.
(g)(1) Except as provided in paragraph (2) of this subsection, the Board,
or an administrative law judge or other employee of the Board designated
to hear a case, may require payment by the agency involved of reasonable
attorney fees incurred by an employee or applicant for employment if the
employee or applicant is the prevailing party and the Board,
administrative law judge, or other employee (as the case may be)
determines that payment by the agency is warranted in the interest of
justice, including any case in which a prohibited personnel practice was
engaged in by the agency or any case in which the agency's action was
clearly without merit.
(2) If an employee or applicant for employment is the prevailing party and
the decision is based on a finding of discrimination prohibited under
section 2302(b)(1) of this title, the payment of attorney fees shall be in
accordance with the standards prescribed under section 706(k) of the Civil
Rights Act of 1964 (42 U.S.C. 2000e-5(k)).
(h) The Board may, by regulation, provide for one or more alternative
methods for settling matters subject to the appellate jurisdiction of the
Board which shall be applicable at the election of an applicant for
employment or of an employee who is not in a unit for which a labor
organization is accorded exclusive recognition, and shall be in lieu of
other procedures provided for under this section. A decision under such a
method shall be final, unless the Board reopens and reconsiders a case at
the request of the Office of Personnel Management under subsection (e) of
this section.
(i)(1) Upon the submission of any appeal to the Board under this section,
the Board, through reference to such categories of cases, or other means,
as it determines appropriate, shall establish and announce publicly the
date by which it intends to complete action on the matter. Such date
shall assure expeditious consideration of the appeal, consistent with the
interests of fairness and other priorities of the Board. If the Board
fails to complete action on the appeal by the announced date, and the
expected delay will exceed 30 days, the Board shall publicly announce the
new date by which it intends to complete action on the appeal.
(2) Not later than March 1 of each year, the Board shall submit to the
Congress a report describing the number of appeals submitted to it during
the preceding fiscal year, the number of appeals on which it completed
action during that year, and the number of instances during that year in
which it failed to conclude a proceeding by the date originally announced,
together with an explanation of the reasons therefor.
(3) The Board shall by rule indicate any other category of significant
Board action which the Board determines should be subject to the
provisions of this subsection.
(4) It shall be the duty of the Board, an administrative law judge, or
employee designated by the Board to hear any proceeding under this
section to expedite to the extent practicable that proceeding.
(j) In determining the appealability under this section of any case
involving a removal from the service (other than the removal of a
reemployed annuitant), neither an individual's status under any retirement
system established by or under Federal statute nor any election made by
such individual under any such system may be taken into account.
(k) The Board may prescribe regulations to carry out the purpose of this
section.
§ 113. Secretary of Defense
(a) There is a Secretary of Defense, who is the head of the Department of
Defense, appointed from civilian life by the President, by and with the
advice and consent of the Senate. A person may not be appointed as
Secretary of Defense within 10 years after relief from active duty as a
commissioned officer of a regular component of an armed force.
* * * * * * *
Section 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.
* * * * * * *
(c) Civil action by employee or applicant for employment for redress of
grievances; time for bringing of action; head of department, agency, or unit as
defendant
Within 90 days of receipt of notice of final action taken by a department,
agency, or unit referred to in subsection (a) of this section, or by the Equal
Employment Opportunity Commission upon an appeal from a decision or order of
such department, agency, or unit on a complaint of discrimination based on race,
color, religion, sex or national origin, brought pursuant to subsection (a) of
this section, Executive Order 11478 or any succeeding Executive orders, or after
one hundred and eighty days from the filing of the initial charge with the
department, agency, or unit or with the Equal Employment Opportunity Commission
on appeal from a decision or order of such department, agency, or unit until
such time as final action may be taken by a department, agency, or unit, an
employee or applicant for employment, if aggrieved by the final disposition of
his complaint, or by the failure to take final action on his complaint, may file
a civil action as provided in section 2000e-5 of this title, in which civil
action the head of the department, agency, or unit, as appropriate, shall be the
defendant.
* * * * * * *
[Code of Federal Regulations]
[Title 5, Volume 3] 0
[Revised as of January 1, 2001]
From the U.S. Government Printing Office via GPO Access
[CITE: 5CFR1201.26]
[Page 16]
TITLE 5--ADMINISTRATIVE PERSONNEL
CHAPTER II--MERIT SYSTEMS PROTECTION BOARD
PART 1201--PRACTICES AND PROCEDURES--Table of Contents
Subpart B--Procedures for Appellate Cases
Sec. 1201.26 Number of pleadings, service, and response.
* * * * * * *
(b) Service--(1) Service by the Board. The appropriate office of the Board will
mail a copy of the appeal to each party to the proceeding other than the
appellant. It will attach to each copy a service list, consisting of a list of
the names and addresses of the parties to the proceeding or their designated
representatives.
(2) Service by the parties. The parties must serve on each other one copy of
each pleading, as defined by Sec. 1201.4(b), and all documents submitted with
it, except for the initial appeal. They may do so by mail, by facsimile, by
personal delivery, or by commercial overnight delivery to each party and to each
representative. A certificate of service stating how and when service was made
must accompany each pleading. The parties must notify the appropriate Board
office and one another, in writing, of any changes in the names or addresses on
the service list.
* * * * * * *
[Code of Federal Regulations]
[Title 5, Volume 3]
[Revised as of January 1, 2001]
From the U.S. Government Printing Office via GPO Access
[CITE: 5CFR2421.2]
[Page 375-376]
TITLE 5--ADMINISTRATIVE PERSONNEL
CHAPTER XIV--FEDERAL LABOR RELATIONS AUTHORITY, GENERAL COUNSEL OF THE FEDERAL
LABOR RELATIONS AUTHORITY AND FEDERAL SERVICE IMPASSES PANEL
PART 2421--MEANING OF TERMS AS USED IN THIS SUBCHAPTER--Table of Contents
Sec. 2421.2 Terms defined in 5 U.S.C. 7103(a); General Counsel; Assistant
Secretary.
(a) The terms person, employee, agency, labor organization, dues, Authority,
Panel, collective bargaining agreement, grievance, supervisor, management
official, collective bargaining, confidential [[Page 376]] employee, conditions
of employment, professional employee, exclusive representative, firefighter, and
United States, as used in this subchapter shall have the meanings set forth in 5
U.S.C. 7103(a). The terms covered employee, employee, employing office, and
agency, when used in connection with the Presidential and Executive Office
Accountability Act, 3 U.S.C. 401 et seq., shall have the meaning set out in 3
U.S.C. 401(b), and 431(b) and (d)(2). Employees who are employed in the eight
offices listed in 3 U.S.C. 431(d)(2) shall be excluded from coverage if the
Authority determines that such exclusion is required because of a conflict of
interest, an appearance of a conflict of interest, or the President's or Vice
President's constitutional responsibilities, in addition to the exemptions
currently set forth in 5 U.S.C. 7103(a).
* * * * * * *
(5 C.F.R. 2424.2 copied from bound volume)[Code of Federal Regulations]
[Title 5, Volume 3]
[Revised as of January 1, 2001]
From the U.S. Government Printing Office via GPO Access
[CITE: 5CFR2424.22]
[Page 405-406]
TITLE 5--ADMINISTRATIVE PERSONNEL
CHAPTER XIV--FEDERAL LABOR RELATIONS AUTHORITY, GENERAL COUNSEL OF THE FEDERAL
LABOR RELATIONS AUTHORITY AND FEDERAL SERVICE IMPASSES PANEL
PART 2424--NEGOTIABILITY PROCEEDINGS--Table of Contents
Subpart C--Filing and Responding to a Petition for Review; Conferences
Sec. 2424.22 Exclusive representative's petition for review; purpose; content;
severance; service.
* * * * * * *
(d) Service. The petition for review, including all attachments, must be served
in accord with Sec. 2424.2(g).
ADDENDUM B
1. Notice And Order To Show Cause (10/17/00) B-1
2. Order Dismissing Petition For Review (1/16/01) B-7
3. Notice Of Reinstatement And Order To Cure
Procedural Deficiency (3/8/01) B-13
4. Notice And Order To Show Cause (4/12/01) B-18
5. Order Dismissing Petition For Review (5/8/01) B-23
[1] Pertinent statutory provisions are set forth in the attached Addendum
(Add.) A to this brief.
[2] Relevant orders of the Authority not included with Local 1592's brief
are provided in Add. B. See Circuit Rule 28.2(B). For ease of reference, Add.
B also includes those orders previously provided with Local 1592's brief.
[3] Although Local 1592's additional criticism (Br. at 6) of the Authority's
case processing performance is irrelevant to the merits of this case, the
criticism's unfairness warrants a brief comment. As reflected in the Authority
Program Highlights section of the FLRA's Annual Report for Fiscal Year 2000,
available on the Authority's website (
http://www.flra.gov/reports/annual00/22ar5.html), the average age of cases
pending before the Authority at the close of the year was 86 days and less than
10 percent of cases pending merits review were over 9 months old.
[4] Similarly, the conventions the Authority follows to refer to agency
subcomponents in its decisions is irrelevant to the proper legal interpretation
of the specific, express service requirements imposed by § 7117(c)(2)(B).