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FLRA Briefs

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

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

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 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

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 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

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 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

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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