Nos. 98-71173 & 98-71347
IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
_______________________________
LUKE AIR FORCE BASE, ARIZONA,
Petitioner/Cross-Respondent
v.
FEDERAL LABOR RELATIONS AUTHORITY,
Respondent/Cross-Petitioner
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1547,
Intervenor
_______________________________
ON PETITION FOR REVIEW AND CROSS-APPLICATION
FOR ENFORCEMENT OF A DECISION AND ORDER OF
THE FEDERAL LABOR RELATIONS AUTHORITY
RESPONDENT'S PETITION FOR REHEARING
AND SUGGESTION FOR REHEARING EN BANC
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
INTRODUCTION AND STATEMENT OF COUNSEL 1
PRELIMINARY STATEMENT 3
A. The Facts 3
B. Proceedings Before the Authority 4
C. The Court's Decision 5
ARGUMENT 5
A. The Panel's Interpretation of Section 7114(a)(2)(A) Is Inconsistent
with the Express Terms of the Statute 5
B. Rehearing, En Banc, Is Warranted Because the Panel's Decision
Conflicts with Another Decision of this Court 9
C. Rehearing, En Banc, Is Warranted Because the Panel's
Decision Substantially Affects a Rule of National
Application in Which There Is an Overriding Need
for National Uniformity, and Is Inconsistent with
Decisions of the United States Courts of Appeals for the
District of Columbia and Tenth Circuits 11
1. The panel's decision in this case substantially
affects a rule of national application in which there
is an overriding need for national uniformity 11
2. The panel's decision conflicts with decisions of the
D.C. and Tenth Circuits 12
a. NTEU 12
b. VA, Denver 14
CONCLUSION 15
ADDENDUM
Ninth Circuit Memorandum Decision granting the Petition for Review in
Luke Air Force Base v. FLRA, Nos. 98-71173 and 98-71347
(9th Cir. December 30, 1999)
TABLE OF AUTHORITIES
FEDERAL CASES
Department of Veterans Affairs, Denver, Colo. v. FLRA,
3 F.3d 1386 (10th Cir. 1993) 3, 14
Department of Veterans Affairs Med. Ctr., Long Beach, Cal. v. FLRA,
16 F.3d 1526 (9th Cir. 1994) 3, 9, 10
Garner v. Teamsters Local Union No. 776,
346 U.S. 485 (1953) 11
I.R.S., Fresno Serv. Ctr. v. FLRA, 706 F.2d 1019
(9th Cir. 1983) passim
NLRB v. A-Plus Roofing, Inc., 39 F.3d 1410
(9th Cir. 1994) 9
NTEU v. FLRA, 774 F.2d 1181
(D.C. Cir. 1985) passim
In Re Yochum, 89 F.3d 661 (9th Cir. 1996) 6
DECISIONS OF THE FEDERAL LABOR RELATIONS AUTHORITY
General Serv. Admin., Region 9 and American Fed'n of Gov't Employees,
Council 236, 48 FLRA 1348 (1994) 4
U.S. Dep't of Justice, Bureau of Prisons, Fed. Correctional Inst.
(Ray Brook, New York), 29 FLRA 584 (1987) 15
FEDERAL STATUTES
Federal Service Labor-Management Relations Statute,
5 U.S.C. §§ 7101-7135 (1994 & Supp. III 1997) 2
5 U.S.C. § 7103 (a) (9) 6, 7
5 U.S.C. § 7114 (a) (2) (A) passim
5 U.S.C. § 7121 2, 7, 13
5 U.S.C. § 7121 (a) 8, 9
5 U.S.C. § 7121 (d) 7, 8, 10
5 U.S.C. § 7121 (e) 7, 8, 10
LEGISLATIVE HISTORY
H.R. Rep. No. 95-1403 (1978) 13
IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
Nos. 98-71173 & 98-71347
_______________________________
LUKE AIR FORCE BASE, ARIZONA,
Petitioner/Cross-Respondent
v.
FEDERAL LABOR RELATIONS AUTHORITY,
Respondent/Cross-Petitioner
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1547,
Intervenor
_______________________________
ON PETITION FOR REVIEW AND CROSS-APPLICATION
FOR ENFORCEMENT OF A DECISION AND ORDER
OF THE FEDERAL LABOR RELATIONS AUTHORITY
RESPONDENT'S PETITION FOR REHEARING
AND SUGGESTION FOR REHEARING EN BANC
INTRODUCTION AND STATEMENT OF COUNSEL
The panel resolved this case by disagreeing with the Authority over how to
construe the statute that the Authority administers. The question was
whether a meeting between representatives of Luke Air Force Base, Arizona
(Luke AFB) and an employee represented by the American Federation of
Government Employees, Local 1547 ("Local 1547" or "union") regarding the
employee's formal discrimination complaint concerned a "grievance" within
the meaning of section 7114(a)(2)(A) of the Federal Service Labor-Management
Relations Statute, 5 U.S.C. §§ 7101-7135 (1994 & Supp. III 1997)
(Statute).[1] The panel (Circuit Judges O'Scannlain, Hawkins, and Senior
Circuit Judge Wiggins) held, in a memorandum decision (attached), that the
meeting did not concern a "grievance" because the employee's complaint was
brought pursuant to Equal Employment Opportunity Commission (EEOC)
procedures and because such matters are excluded from the parties'
negotiated grievance procedure (NGP).[2] Memorandum (Mem.) at 4, citing
I.R.S., Fresno Serv. Ctr. v. FLRA, 706 F.2d 1019, 1024 (9th Cir. 1983) (IRS,
Fresno).
In counsel's judgment, rehearing is warranted because the panel's
interpretation of the relevant statutory provisions is inconsistent with
the express terms of the Statute. Further, respondent seeks rehearing
with suggestion of rehearing en banc because the panel's decision
conflicts with another decision of this Court.[3] See Fed. R. App. P.
35(a). Additionally, the panel's decision substantially affects a rule
of national application in which there is an overriding need for national
uniformity and is inconsistent with decisions of the United States Courts
of Appeals for the D.C. and Tenth Circuits.[4] See Fed. R. App. P. 35(b);
see also 9th Cir. R. 35(b).
PRELIMINARY STATEMENT
A. The Facts
The facts are not in dispute. As relevant here, on January 19, 1995,
representatives of Luke AFB met with Tillie Cano, a bargaining unit
employee, to discuss settlement of her formal discrimination complaints
filed pursuant to EEOC procedures. The complainant had named the union
president as her representative, and he had attended a meeting between the
complainant and agency representatives the previous day. However, the union
president was never told of the January 19 meeting, and it was conducted
without him. At this meeting, the complainant was presented with a proposed
settlement and, after some negotiations between the complainant and
representatives of the agency, a settlement was executed.
B. Proceedings Before the Authority
Subsequently, Local 1547 filed an unfair labor practice (ULP) charge
alleging that Luke AFB violated section 7114(a)(2)(A) by not affording the
union the opportunity to be present at the January 19 meeting.[5] The
General Counsel issued a complaint and the case was tried before an
Administrative Law Judge (ALJ) who found that Luke AFB committed ULPs as
alleged. After considering Luke AFB's exceptions to the ALJ's decision, the
Authority adopted the decision. The Authority held that the January 19
meeting satisfied the elements of a formal discussion and that Luke AFB
failed to provide the union with the opportunity to attend.[6] As relevant
here, the Authority held, in agreement with the ALJ, that the meeting
concerned a "grievance" within the meaning of section 7114(a)(2)(A).
C. The Court's Decision
Luke AFB petitioned this Court for review of the Authority's decision,
contending only that the meeting did not concern a "grievance."[7] As
noted above, a panel of this Court granted Luke AFB's petition for review,
finding that the meeting did not concern a "grievance" within the scope of
the relevant provisions of the Statute administered by the Authority. The
memorandum decision contained no statutory analysis, but rather relied on
the Court's earlier decision in IRS, Fresno.
ARGUMENT
A. The Panel's Interpretation of Section 7114(a)(2)(A) Is Inconsistent with the
Express Terms of the Statute
In the instant case, the panel relied on this Court's prior decision in IRS,
Fresno and found that complaints brought pursuant to EEOC procedures are not
"grievances" within the meaning of section 7114(a)(2)(A). Mem. at 4. In
IRS, Fresno, this Court held that a "grievance," for the purposes of section
7114(a)(2)(A), does not encompass complaints brought pursuant to EEOC
procedures, because EEOC procedures are "unrelated to and separate from the
contractual grievance process." IRS, Fresno, 706 F.2d at 1024. As
demonstrated below, this excessively narrow interpretation of the Statute's
definition of "grievance" is inconsistent with the express terms of the
Statute.
Section 7114(a)(2)(A) of the Statute broadly provides for union attendance
at meetings concerning "any grievance." To ascertain the scope of the term
"grievance" in section 7114(a)(2)(A), the first place to look is the
Statute's express definition of "grievance." See In Re Yochum, 89 F.3d
661, 666 (9th Cir. 1996) ("[I]n statutes that contain statutory definition
sections, it is commonly understood that such definitions establish meaning
wherever the terms appear in the same Act.").
The Statute's definition of "grievance" does not contain the severe
limitations read into the term "grievance" by the panel. Section 7103 is
the Statute's definition section. Section 7103(a)(9) provides in relevant
part that:
'grievance' means any complaint-
(A) by any employee concerning any matter relating to the employment of the
employee[.] (Emphasis added).
It is clear that the express language of section 7103(a)(9) does not provide
any basis for limiting the definition of "grievance," as the panel did, to
"grievances" falling within the scope of an NGP. To the contrary, the
Statute defines "grievance" in the most generic terms. A "grievance" is,
explicitly, any employment-related complaint, with Congress's repeated use
of the modifier "any" underscoring its intent that the definition should
extend to the entire range of matters that would otherwise fall within its
coverage. Ms. Cano's complaint that she was the victim of illegal
discrimination by her employing agency was undeniably a "complaint by [an]
employee concerning [a] matter relating to [her employment]," i.e., a
"grievance" under the Statute's definition.
The use of the term "grievance" and its derivatives in the Statute's section
providing for the grievance procedure, section 7121, is consistent with
section 7103(a)(9)'s broad definition, and indicates specifically that a
"grievance" includes statutory appeals. First, subsections 7121(d) and (e)
provide that "aggrieved employees" affected by illegal discrimination within
the jurisdiction of the EEOC, or subject to conduct or performance-based
adverse actions within the jurisdiction of the Merit Systems Protection
Board (MSPB), may raise these matters under either a statutory procedure or
an NGP, but not both. 5 U.S.C. § 7121(d), (e). As the D.C. Circuit held
with regard to these subsections:
[I]f the term "grievance" referred only to disputes pursued through [NGPs], §
7121(d) and (e) would not be worded to require an "aggrieved employee" (emphasis
supplied) to elect to pursue a remedy under either a negotiated procedure or a
statutory procedure. An "aggrieved employee" - i.e., one with a grievance -
would by definition necessarily pursue his grievance under a negotiated
procedure.
NTEU, 774 F.2d at 1187.
Second, section 7121(a)'s reference to subsections 7121(d) and (e) in
discussing the scope and exclusivity of NGPs also indicates that a
"grievance" includes statutory appeals. Section 7121(a) provides that any
collective bargaining agreement shall include procedures for the "settlement
of grievances." These procedures, however, are not entirely exclusive.
Section 7121(a) provides in this regard that an NGP's procedures "shall be
the exclusive administrative procedures for resolving grievances which fall
within [the NGP's] coverage," "[e]xcept as provided in subsections (d) [and]
(e) . . . of this section" (emphasis added). Thus, "the statutory
procedures referred to in § 7121(d) and (e) are also procedures for
resolving grievances." NTEU, 774 F.2d at 1187-88.
Finally, the fact that EEO matters were excluded from the scope of the
parties' NGP in this case does not limit the meaning of the term
"grievance." Section 7121(a)'s use of the phrase "grievances which fall
within [an NGP's] coverage" necessarily means that there may be "grievances"
that are outside the NGP's coverage. Any other interpretation would render
the phrase meaningless. See NLRB v. A-Plus Roofing, Inc., 39 F.3d 1410,
1415 (9th Cir. 1994) (citations omitted) (In construing a statute, the court
is "obliged to give effect, if possible, to every word Congress used.").
In sum, the Statute provides a broad definition of "grievance" that includes
statutory appeals matters that may or may not also be processed through
NGPs. Because the statutory definition controls the term's use in section
7114(a)(2)(A), a meeting concerning a statutory appeal, such as the formal
EEO complaint in this case, constitutes a formal discussion within the scope
of that section. The panel's conclusion to the contrary constitutes grounds
for granting the Authority's petition for rehearing.
B. Rehearing, En Banc, Is Warranted Because the Panel's Decision Conflicts with
Another Decision of this Court
The panel's decision also conflicts with this Circuit's VA, Long Beach
decision. In VA, Long Beach, this Court held that interviews with
bargaining unit employee witnesses conducted by a representative of an
employer agency in connection with a statutory appeal to the MSPB were
formal discussions concerning a "grievance" within the scope of section
7114(a)(2)(A). 16 F.3d at 1536. The Court held that the Authority's broad
reading of the term grievance "as encompassing statutory appeals" was "in
conformance with the language of the Statute." Id. at 1533. Although the
VA, Long Beach Court distinguished IRS, Fresno on its facts, the Court
recognized that IRS, Fresno was wrongly decided: "[T]he reasoning of the
District of Columbia Circuit in [NTEU], rejecting the IRS, Fresno analysis,
is more persuasive." 16 F.3d at 1534 n.4. NTEU is discussed below at
section C.2.a.
With respect to the applicability of section 7114(a)(2)(A), there is no
meaningful difference between VA, Long Beach and the instant case. Both
involve employee complaints pursued through alternative statutory procedures
rather than through the parties' NGP, and in both cases the procedures were
governed by a regulatory scheme separate and distinct from the Statute.
The holding of the Court in VA, Long Beach - that the term "grievance"
encompasses statutory appeals - is wholly applicable to the instant case.
The Court in VA, Long Beach recognized that section 7121(e) of the Statute
permitted the employee's "grievance" in that case to be filed through the
NGP or through the statutory procedure. Section 7121(d) authorizes the same
choice with respect to formal discrimination complaints, such as the
complaint at issue in the instant case. That the complaint in the instant
case was, coincidentally, excluded from the NGP is of no consequence. [8]
See NTEU, 774 F.2d at 1185 n. 5 (treating as irrelevant whether parties had
excluded the matter at issue there from the NGP).[9]
C. Rehearing, En Banc, Is Warranted Because the Panel's Decision Substantially
Affects a Rule of National Application in Which There Is an Overriding Need for
National Uniformity, and Is Inconsistent with Decisions of the United States
Courts of Appeals for the District of Columbia and Tenth Circuits
1. The panel's decision in this case substantially affects a rule of national
application in which there is an overriding need for national uniformity
There is an overriding need for national uniformity in construing a federal
law that regulates federal sector labor-management relations. The Supreme
Court has recognized that Congress, in regulating private sector labor-
management relations, intended that there be uniform application of
statutory rules and procedures. See Garner v. Teamsters Local Union No.
776, 346 U.S. 485, 490 (1953). This rule applies with equal or greater
force in the federal sector where bargaining units are frequently
nationwide. The rights and obligations of federal employer agencies and the
unions that represent their employees should not vary depending upon the
circuit court of appeals with jurisdiction over their operations.[10]
2. The panel's decision conflicts with decisions of the D.C. and Tenth
Circuits
a. NTEU
As indicated previously, the panel's determination was based exclusively on
the Court's IRS Fresno decision. Expressly disagreeing with IRS, Fresno's
conclusion that "the term 'grievance' . . . include[s] only disputes
governed by a negotiated grievance procedure," NTEU, 774 F.2d at 1188, the
D.C. Circuit found that a meeting concerning a statutory appeal to the MSPB
concerned a grievance within the meaning of section 7114(a)(2). See NTEU,
774 F.2d at 1188. The court's extensive statutory analysis began with the
Statute's broad definition of "grievance," noting that nothing in that
definition restricts a "grievance" to matters raised through an NGP. Id. at
1186. Further, the court found the broad interpretation of the term
consistent with its use in section 7121 of the Statute. Id. at 1186-88; see
also discussion above in section A.
In addition to the Statute's express terms, the D.C. Circuit also found
support for its conclusion in the Statute's legislative history. Commenting
on what was to become the definition of "grievance," the House Report stated
that "[i]t should be noted that, although this subsection is virtually all-
inclusive in defining 'grievance,' section 7121 excludes certain grievances
from being processed under a negotiated grievance procedure, thereby
limiting the net effect of the term." H.R. Rep. No. 95-1403, at 40 (1978).
The court found that "[t]he only plausible reading of the sentence . . . is
that § 7121 ensures that some grievances cannot be processed under [an
NGP]." NTEU, 774 F.2d at 1188. By recognizing that some grievances are
excluded from the NGP, the passage establishes that the term "grievance"
should not be limited to matters covered by an NGP.
Finally, the D.C. Circuit rejected this Court's finding in IRS, Fresno that
a union has no cognizable interest in disputes pursued under statutory
procedures. Although recognizing that a union's institutional role with
respect to statutory appeal rights is more restricted than its role in an
NGP, the court noted that a union has an interest in the fair treatment of
unit members and any allegation of unfair treatment triggers that interest.
See NTEU, 774 F.2d at 1188. Further, resolution of individual complaints
may well have effects on other employees. For example, there may be a
direct effect if a remedy for one employee will result in decreased
opportunities for others. Id. Lastly, determinations with respect to what
constitutes an unjust employment action in one case may affect the rights
and expectations of other employees in similar circumstances. Id. As the
D.C. Circuit stated, these effects are present whether the aggrieved
employee pursues the matter through the NGP or through an alternative
statutory procedure. Id.
b. VA, Denver
"[G]reatly persuaded by the reasoning of [NTEU]," the Tenth Circuit also
held that the term "grievance" as used in section 7114(a)(2)(A) encompasses
statutory appeals as well as matters pursued through an NGP. VA, Denver, 3
F.3d at 1390-91. As in NTEU, the discussion at issue in VA, Denver
concerned an employee's appeal to the MSPB. Adopting the reasoning of the
D.C. Circuit, the court held that limiting the reach of "grievance" to the
NGP "is too narrow a reading of [section] 7114(a)(2)(A)." Id. at 1391.
In summary, two courts of appeals and another panel of this Court have
rejected the analysis that served as the basis of the panel's decision in
the instant case.[11] As demonstrated above, the conclusion of IRS, Fresno,
that the term "grievance" as used in section 7114(a)(2)(A) excludes matters
processed under statutory appeals procedures, is inconsistent with the terms
of the Statute. Rehearing, en banc, is necessary so that this Court may
reconsider its decision in that case.
CONCLUSION
The panel's decision should be accepted for rehearing by the entire Court.
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
February 10, 2000
CERTIFICATION PURSUANT TO FRAP RULE 32
AND CIRCUIT RULE 28
Pursuant to Federal Rule of Appellate Procedure 32 and Circuit Rule 32(e)4),
I certify that the attached brief is proportionately spaced, utilizes 14-
point serif type, and contains 3302 words.
February 10, 2000
___________________________
William R. Tobey
IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
_______________________________
LUKE AIR FORCE BASE, ARIZONA,
Petitioner/Cross-Respondent
v.
FEDERAL LABOR RELATIONS AUTHORITY, Nos. 98-71173
Respondent/Cross-Petitioner & 98-71347
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1547,
Intervenor
_______________________________
CERTIFICATE OF SERVICE
I certify that copies of the Respondent's Petition for Rehearing and
Suggestion for Rehearing En Banc have been served this day, by first-class
mail, upon the following:
William Kanter, Esq. Kevin M. Grile
Sandra Wien Simon, Esq. Assistant General Counsel
Appellate Staff American Federation of
Civil Division, Room 9102 Government Employees,
Department of Justice AFL-CIO
601 D Street, N.W. 449 North Clark St., Room 300
Washington, D.C. 20530 Chicago, IL 60610
_________________________
Jennifer A. Baker
Paralegal Specialist
February 10, 2000
[1] Local 1547 is the certified bargaining representative of a unit of
employees at Luke AFB.
[2] Section 7121 of the Statute requires that employer agencies and unions
include in their collective bargaining agreements "procedures for the settlement
of grievances."
[3] Department of Veterans Affairs Med. Ctr., Long Beach, Cal. v. FLRA, 16
F.3d 1526, 1529 (9th Cir. 1994) (VA, Long Beach). Although argued in brief, the
panel's memorandum did not address the apparent conflict with VA, Long Beach.
[4] NTEU v. FLRA, 774 F.2d 1181 (D.C. Cir. 1985) (NTEU); Department of
Veterans Affairs, Denver, Colo. v. FLRA, 3 F.3d 1386 (10th Cir. 1993) (VA,
Denver).
[5] Section 7114(a)(2)(A) provides that a union must be given the
opportunity to be represented at:
(A) any formal discussion between one or more representatives of the agency and
one or more employees in the unit or their representatives concerning any
grievance or any personnel policy or practices or other general condition of
employment[.] (Emphasis added).
[6] Under well-established Authority precedent, a union's right to
representation under section 7114(a)(2)(A) requires the existence of: (1) a
discussion; (2) which is formal; (3) between one or more representatives of the
agency and one or more unit employees or their representatives; (4) concerning
any grievance or any personnel policy or practice or other general condition of
employment. See Mem. at 3-4, citing General Serv. Admin., Region 9 and American
Fed'n of Gov't Employees, Council 236, 48 FLRA 1348, 1354 (1994).
[7] Luke AFB did not contest that the other elements of a formal discussion
were satisfied nor that it failed to provide the union with an opportunity to be
represented.
[8] There is no basis to conclude that by excluding discrimination
complaints from the NGP, the union was intending to waive its statutory rights
under section 7114(a)(2)(A). Indeed, it may have been willing to exclude the
matter from the NGP in reliance on section 7114(a)(2)(A) to protect its
institutional interests.
[9] Also, at the time the ULP was committed in VA, Long Beach, the employee
could not have pursued his complaint through the NGP, having opted to use the
MSPB statutory procedure instead.
[10] The significance of the issue, and the fact that the panel's decision
establishes a rule of general applicability going substantially beyond the
particular facts of this case, is recognized by Luke AFB. Luke AFB has
requested publication of the panel decision stating that "[u]nion representation
at government EEO mediation sessions is a recurring issue of substantial public
importance that is of interest to all components of the Federal Government."
Luke AFB Request to Publish, January 10, 2000.
[11] It is irrelevant that the discussion at issue in IRS, Fresno involved
discrimination complaints under the auspices of the EEOC and those at issue in
the other cases involved MSPB appeals. Both statutory procedures are separate
from any particular NGP, and thus the fact that a particular case involves
either EEOC or MSPB procedures is not a basis for applying the Statute's formal
discussion rights differently. Moreover, the Court's decision in IRS, Fresno
did not turn on any matter unique to EEO complaints. To the extent specific
employee rights under EEOC proceedings might conflict with the union's rights
under section 7114(a)(2)(A) of the Statute, the Authority has noted that it will
take such conflicts into consideration. See U.S. Dep't of Justice, Bureau of
Prisons, Fed. Correctional Inst. (Ray Brook, New York), 29 FLRA 584, 590 (1987).
Although Luke AFB raised the specter of employee/union conflicts, we note that
no such conflicts were present in this case.