D.C. Circuit

National Labor Relations Board Union and National Labor Relations Board PA v. FLRA, No. 08-1229 (D.C. Cir. 2009) [unpublished judgment], reviewing 62 FLRA 397 (2008).

The D.C. Circuit denied the unions’ petition for review of the Authority’s decision that there was no duty to bargain over proposals addressing the process that the agency’s Office of Equal Employment Opportunity is to follow when investigating formal EEO complaints. The Authority treated as untimely, and thus ignored, the unions’ response to the agency’s statement of position because the unions sent the response using Federal Express and it was received one day late.

American Federation of Government Employees, Local 2924 v. FLRA, 470 F.3d 375 (D.C. Cir. 2006), reviewing 60 FLRA 895 (2005).

The D.C. Circuit granted the union’s petition for review. The union sought review of an Authority decision that the agency had not committed ULPs by repudiating collective bargaining agreements concerning drug testing when it removed bargaining unit employees who had entered into a drug rehabilitation program. 

National Treasury Employees Union v. FLRA, 466 F.3d 1079 (D.C. Cir. 2006), reviewing 61 FLRA 168 (2005).

The D.C. Circuit granted the union’s petition for review. The Authority had set aside an arbitrator’s award finding that the agency violated a national agreement and the Statute by implementing local memoranda of understanding that did not include provisions regarding time-off awards.

National Weather Service Employees Organization v. FLRA, No. 05-1397 (D.C. Cir. 2006)[unpublished judgment], reviewing 61 FLRA 241 (2005) 

The D.C. Circuit granted the union's petition for review and remanded the case to the Authority.   The union sought review of an Authority decision finding outside the duty to bargain a union proposal that would increase staff at a specific agency office.

National Treasury Employees Union v. FLRA, 2008 U.S. App. LEXIS 25581 (2008), reviewing 62 FLRA 263 (2007).

The D.C. Circuit granted in part and denied in part the union’s petition for review. While the court agreed that the agency has no obligation to negotiate over two of the union’s proposals, it remanded a third proposal to the Authority to determine whether it represents an appropriate arrangement.

National Treasury Employees Union v. FLRA, No. 05-1230 (D.C. Cir. 2006), reviewing 60 FLRA 572 (2005); reconsideration denied, 60 FLRA 893 (2005). 

The D.C. Circuit denied the union’s petition for review.  The union sought review of an Authority decision granting agency exceptions to an arbitrator's award ruling that the agency violated the Statute when it refused to bargain with the union over certain portions of the union's leave-swapping proposal.  

National Treasury Employees Union v. FLRA,No. 05-1266 (D.C. Cir. 2006), reviewing 60 FLRA 922 (2005).  

The D.C. Circuit denied the union’s petition seeking review of an Authority decision denying the union's exceptions to an arbitrator's award finding that the agency did not violate the Statute and provisions of the parties' collective bargaining agreement by refusing to bargain at the local level over the impact and implementation of changes concerning the length of employees' bridge assignments and regular days off . 

American Federation of Government Employees, Local 2510 v. FLRA,No. 05-1123 (D.C. Cir. 2006) [unpublished decision], reviewing 60 FLRA 281 (2004), reconsideration denied, 60 FLRA 636 (2005).

The union sought review of an Authority decision in an arbitration case reducing the amount of attorney fees awarded by an arbitrator to the union for representing a member in a grievance arbitration.  The court found it did not have jurisdiction to review a final order of the Authority “involving an award by an arbitrator” unless “the order involves an unfair labor practice under [the Statute].”  The court concluded the Authority’s order involved only the attorney’s fee and therefore did not involve a ULP.  Alternatively, the court concluded it could not retain jurisdiction under Leedom v. Kyne since that decision implicates the jurisdiction of the district court, not that of the court of appeals.  Therefore, the court dismissed the union’s petition for lack of jurisdiction.

American Federation of Government Employees, National Border Patrol Council, AFL-CIO v. FLRA, No. 05-1268 (D.C. Cir. 2006), reviewing 60 FLRA 943 (2005).

The D.C. Circuit granted the union’s petition for review.  The union sought review of an Authority decision dismissing a ULP complaint alleging that the agency committed a ULP by changing its policy on the type of personally owned handguns employees could use, reducing the number of hours of remedial firearms training provided to employees, and repudiating a Memorandum of Understanding. 

Patent Office Professional Association v. FLRA, No. 05-1173 (D.C. Cir. 2006) [unpublished judgment], reviewing 60 FLRA 839 (2005)

The D.C. Circuit dismissed the union's petition for review for lack of jurisdiction.  The union sought review of the Authority decision setting aside an arbitrator's award that found that the agency had violated the parties' agreement and that directed the agency to attempt, through discussions with the union, to establish an alternative to a special pay rate increase that had been requested from, but denied by, OPM.  

American Federation of Government Employees, Local 1302 v. FLRA, No. 05-1168 (D.C. Cir. 2006) [unpublished decision], reviewing 60 FLRA 752 (2005).

The D.C. Circuit denied the union’s petition seeking review of an Authority ULP decision finding that certain statements of an agency management official, and the agency's failure to promote an employee who had engaged in protected activities, did not violate the Statute. 

Association of Civilian Technicians, Wichita Air Capitol Chapter v. FLRA, No. 05-1192 (D.C. Cir. 2006) [unpublished decision], reviewing on remand 60 FLRA 342 (2004); reconsideration denied, 60 FLRA 835 (2005).

The D.C. Circuit denied, per curiam, the union’s petition seeking review of the Authority decision on remand finding nonnegotiable a proposal requiring the agency, among other things, to negotiate over the assignment of military training duties. 

National Air Traffic Controllers Association, AFL-CIO and Professional Airways Systems Specialist, AFL-CIO v. FSIP and FLRA, No. 05-5076 (D.C. Cir. 2006).

The D.C. Circuit affirmed the D.C. District Court decision dismissing the unions' complaint. In the district court proceeding, the unions sought declaratory and injunctive relief against the FSIP, challenging FSIP decisions declining to assert jurisdiction over certain bargaining impasses with the FAA concerning employee compensation. (NATCA and PASS v. FSIP and FLRA, No. 1:04CV00138 (D.D.C. Cir. Feb. 22, 2005).   

National Treasury Employees Union v. FLRA, No. 04-1433 (D.C. Cir. 2006), reviewing  60 FLRA 367 (2004).

The D.C. Circuit granted the union's petition for review, remanded in part and reversed in part the Authority's decision and order. The union sought review of an Authority decision finding nonnegotiable, in whole or in part, proposals requiring the agency to provide overnight storage for employees' authorized firearms, permitting employees carrying authorized firearms to make stops between residences and work locations, and expediting resolution of firearms issues.

National Treasury Employees Union v. FLRA, 414 F.3d 50 (D.C. Cir. 2005), reviewing 59 FLRA 703 (2005).

The D.C. Circuit denied the union’s petition seeking review of an Authority decision setting aside an arbitrator’s award.  The award found that the agency acted improperly by failing to negotiate with the union prior to implementing changes in its National Inspectional Assignment Policy (NIAP).  The court upheld the Authority’s conclusion that the agency’s revision to the NIAP constituted the exercise of management rights.  Finally, the court found that the Authority’s decision did not misapply its precedent.  

National Federation of Federal Employees, FD-1, IAMAW, Locals 951 and 2152 v. FLRA, 412 F.3d 119 (D.C. Cir. 2005), reviewing 59 FLRA 951 (2004).

The D.C. Circuit granted the union’s petition for review and remanded the case to the Authority.  In the decision under review, the Authority ruled that two union proposals calling for the disclosure of certain documents interfered with the agency’s statutory right to assign work because the agency would have to assign personnel to review a large number of documents sought by the union.  The court concluded the decision was contrary to longstanding Authority precedent making it clear that union proposals interfere with the right to assign work only when they specify which employees are to perform the task at issue, which neither proposal in this case did.  In these circumstances, the court granted the union’s petition for review and remanded the case for issuance of a bargaining order.

National Treasury Employees Union v. FLRA, No. 404 F.3d 454 (D.C. Cir. 2005), reviewing 59 FLRA 749 (2004).

The D.C. Circuit granted the union's petition for review, vacated the Authority's decision and order and remanded the case to the Authority for further proceedings.  The Authority found nonnegotiable the union's  proposal requiring the agency to provide overnight storage of agency-authorized firearms in a lock box or other secure storage container at all agency offices where armed employees work or are assigned.  The court agreed with the Authority that the proposal affected management's right to determine its internal security practices.  However, the court found that the Authority failed to follow its precedent in determining whether the union's proposal constituted an appropriate arrangement. 

National Treasury Employees Union v. FLRA, 399 F.3d 334 (D.C. Cir. 2005), reviewing 59 FLRA 217 (2003).

The D.C. Circuit remanded the Authority’s decision for further proceedings.  The case dealt with the Authority’s determination that union proposals affecting the agency’s rights under the Authority’s “covered by” doctrine constituted a permissive subject of bargaining under the Statute.  The court concluded in part that a remand was required so that the Authority could address precedent bearing upon the question of whether the “covered by” defense is a unilateral right explicitly or by unambiguous implication conferred by the Statute.  The court also indicated that the remand would permit the Authority to examine in more detail the relationship between the union’s proposals and Authority and private sector precedent regarding zipper and reopener clauses.  

Association of Administrative Law Judges, International Federation of Professional and Technical Engineers, AFL-CIO v. FLRA, 397 F.3d 957 (D.C. Cir. 2005), reviewing 59 FLRA 646 (2004).

The D.C. Circuit denied the union’s petition for review.  The union sought review of an Authority decision finding that the agency did not commit a ULP by failing to bargain with the union over the reduction in the number of reserved parking spaces because the impact on employees was de minimis. 

American Federation of State, County & Municipal Employees Council 26 v. FLRA, 395 F.3d 443 (D.C. Cir. 2005), reviewing 59 FLRA 491 (2003).

The D.C. Cir. denied the union's petition for review.  The union sought review of an Authority decision finding that the agency did not commit a ULP by refusing to execute a collective bargaining agreement reached between the parties but disapproved by OMB.

National Treasury Employees Union v. FLRA, 392 F.3d 498 (D.C. Cir. 2004), reviewing 59 FLRA 282 (2003).

The D.C. Circuit granted the union's petition for review, vacated the Authority's decision and order dismissing as untimely a ULP complaint, and remanded the case to the Authority for further proceedings.  The Authority concluded that the agency had an obligation to comply with an arbitrator award as soon as it became final and because the agency never took the actions mandated by the award, the time period for filing a ULP charge was triggered when the award became final.  The court, disagreeing with the Authority, concluded that since the award required the agency to take certain actions by a particular date, the agency's failure to timely take these actions triggered the limitation period for filing the charge.  The court reasoned that it was impossible to find that a ULP occurred before that point because there could not have been a failure to comply with the award before the agency was required to take some action.  

American Federation of Government Employees, Local 4036 v. FLRA, No. 03-1337 (D.C. Cir. 2004) [unpublished decision], reviewing 59 FLRA 3 (2003).

The D.C. Circuit denied, per curiam,  the union petition for review of an Authority decision.  The Authority dismissed the union's complaint finding that the agency did not commit a ULP by failing to comply with an arbitration award by continuing to vacate correctional officer posts. The court concluded that the Authority reasonably determined based on record evidence that many of the posts remained unfilled for good cause.

Association of Civilian Technicians, Puerto Rico Army Chapter v. FLRA, 534 F.3rd 772 (2008), reviewing 60 FLRA 1000 (2005), reconsideration denied,  62 FLRA 144 (2007).

The D.C. Circuit denied the union’s petition for review of the Authority’s denial of a request for reconsideration of its decision dismissing a negotiability appeal. This case, involving a bargaining proposal that would require the agency to reimburse employees for out-of-pocket expenses incurred when the agency cancels previously approved leave, was first decided by the Authority in 2000 (56 F.L.R.A. 493, reconsideration denied 56 F.L.R.A. 807), where the Authority held that the proposal was inconsistent with the Travel Expenses Act. That decision was reversed and remanded by the D.C. Circuit (ACT v. FLRA, 269 F.3d 1112 (D.C. Cir. 2001)). On remand (58 F.L.R.A. 318, reconsideration denied 59 F.L.R.A. 2 (2003), the Authority again found the proposal nonnegotiable, as inconsistent with federal appropriations law. Again the D.C. Circuit reversed and remanded (ACT v. FLRA, 370 F.3d 1214 (2004)). On the second remand, the Authority specifically addressed the questions posed by the Court and, once more, concluded that the proposal was outside the obligation to bargain. Specifically, the Authority found that: 1) the reimbursements required by the provision are not authorized as “official business” of the agency; 2) that the Statute does not create an independent basis for authorizing the reimbursements; 3) this case is distinguishable from cases finding proposals for a union’s use of government telephones or for travel expenses for negotiations negotiable; 4) reasons of staffing, morale, recruitment and retention do not authorize the reimbursements; and 5) the proposal does not constitute an appropriate arrangement under § 7106(b)(3). The court found reasonable the Authority’s determination that the proposal was not an appropriate arrangement and opted not to address the issue of whether the Statute implicitly authorizes expenditures to implement contract provisions that are negotiable under the Statute.

National Federation of Federal Employees, FD-1, IAMAW, Local 1442 v. FLRA, 369 F.3d 548, (D.C. Cir. 2004), reviewing 58 FLRA 685( 2003).

The D.C. Circuit granted the union's petition for review and remanded the case to the Authority for further proceedings.  The Authority found that the agency did not commit a ULP by closing the School Age Services child care program without completing bargaining since the Union waived its right to bargain on the closure when it did not submit a timely bargaining request in accordance with the parties’ agreement.

National Association of Government Employees, Local R5-136 v. FLRA, 363 F.3d 468 (D.C. Cir. 2004), reviewing 58 FLRA 432 (2003).

The D.C. Circuit granted the union's petition for review in part and denied the petition in part of an Authority decision dismissing ULP charges against the agency for refusing to bargain over patient parking spaces at the agency.

Association of Civilian Technicians, Wichita Air Capitol Chapter v. FLRA, 360 F.3d 195 (D.C. Cir. 2004), reviewing 58 FLRA 28 (2002) , reconsideration denied, 58 FLRA 483 (2003) .

The D.C. Circuit granted the union petition for review, vacated and remanded the Authority=s decision.  The union sought review of an Authority decision finding nonnegotiable a proposal requiring the agency, among other things, to negotiate over the assignment of military training duties to National Guard technicians who serve as both civilian employees and military members of the Guard.  Since the proposal  concerned training duties assigned to technicians while serving in their civilian status, not while on full-time Guard duty status, the court found that bargaining on it did violate the prohibitions set forth in 10 U.S.C. ' 976.  Based on the statute=s text, its legislative history, and  established cannons of statutory construction, the court agreed with the union, that ' 976's prohibition did not limit bargaining over terms or conditions of National Guard service in all circumstances, but only when bargaining on those matters relates to members who are serving on full-time Guard duty.

Association of Civilian Technicians, Wichita Air Capitol Chapter v. FLRA, 353 F.3d 46 (D.C. Cir. 2004), reviewing 57 FLRA 939 (2002) , reconsideration denied, 58 FLRA 310 (2003) .

The D.C. Circuit granted the union's petition for review.  The Authority found nonnegotiable the union's proposal relating to how management officials will address union officials and other unit employees engaged in labor-management relations matter.

American Federation of Government Employees, National Veterans Affairs Council 53 v. FLRA, 352 F.3d 433 (D.C. Cir. 2003), reviewing 58 FLRA 8 (2002).

The D.C. Circuit denied the union’s petition for review. The union sought review of an Authority decision finding nonnegotiable a proposal requiring the agency to allow a union observer at performance-based interviews conducted to fill unit positions. The D.C. Circuit agreed with the Authority that the proposal affected management’s right to "make selections for appointments" under § 7106(a)(2)(c) of the Statute. 

National Treasury Employees Union, Chapter 16 v. FLRA, No. 02-1153 (D.C. Cir. 2003) [unpublished decision], reviewing 57 FLRA 718 (2002).

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. 

Department of the Air Force, 436th Airlift Wing, Dover Air Force Base, Dover, Delaware v. FLRA, 316 F.3d 280 (D.C. Cir. Jan. 17, 2003), reviewing 57 FLRA 304 (2001).

The D.C. Cir. denied the agency's petition for review, and enforced the Authority's decision and order finding that the agency committed a ULP by violating § 7116(a)(1) and (8) of the Statute when it failed to provide the union notice and an opportunity to be represented at a mediation session concerning a formal EEO complaint.

Department of the Air Force, 315th Airlift Wing, Charleston Air Force Base, Charleston, South Carolina v. FLRA, 294 F.3d 192 (D.C. Cir. 2002), reviewing 57 FLRA 80 (2001).

The D.C. Circuit granted the agency's petition for review, reversed the Authority's decision and order, and remanded the case with direction to dismiss the unfair labor practice (ULP) complaint. The Authority had held that the agency committed a ULP by suspending a union representative for activity that was not “flagrant misconduct” and was therefore protected by § 7116(a)(1) and (2). The court found, instead, that the conduct was not protected activity under the federal labor statute.

Patent Office Professional Association v. FLRA, No. 01-1271 (D.C. Cir. Apr. 30, 2002)[unpublished decision], reviewing 57 FLRA 185 (2001).

The D.C. Circuit dismissed the union's petition for review of an Authority decision and order finding that the agency committed unfair labor practices by refusing to bargain over various union-initiated proposals.  The union's petition for review contested only the Authority's statement, in dicta, that no comprehensive collective bargaining agreement existed between the union and the agency.  The court held that the union was not "aggrieved" within the meaning of section 7123(a) of the Statute because the Authority's order provided the union with "all of the substantive relief that was necessary to address the agency's unlawful refusal to bargain."  Accordingly, the court found the union did not have standing to file a petition for review and dismissed the case for lack of jurisdiction. 

Association of Civilian Technicians, Inc. v. FLRA, 283 F.3d 339 (D.C. Cir. 2002), reviewing No. 99-2562 (D.D.C. 2001), cert. denied, Association of Civilian Technicians, Inc. v. FLRA, 02-283 (S. Ct. Dec. 2, 2002).  

The D.C. Circuit affirmed the decision of the United States District Court for the District of Columbia holding that with certain exceptions not present here,  district courts lack jurisdiction to review Authority appropriate unit determinations.  The district court dismissed the union's complaint seeking review of the Authority's decision denying the union's petition to consolidate various bargaining units of National Guard civilian technicians into a single unit.  The district court held that it lacked jurisdiction to review the case under § 7123 of the Statute.  The court of appeals agreed with the district court when it ruled § 7123 of the Statute, which "precludes judicial review" of appropriate unit determinations, applies to district courts.   

Association of Civilian Technicians, New York State Council v. FLRA, No. 00-1485 (D.C. Cir. 2001) [unpublished decision]reviewing 56 FLRA 444 (2000); reconsideration denied, 56 FLRA 868 (2000).

The court dismissed the union's petition for review of an Authority decision finding nonnegotiable a proposal requiring the agency to convert certain full-time military positions to positions that could be filled by civilian technicians or other types of personnel. The court agreed with the Authority that the Guard's regulation, ANGI 36-101, does not require the Guard to hire civilian technicians.

Association of Civilian Technicians, Tony Kempenich Memorial Chapter 21 v. FLRA, 269 F.3d 1119 (D.C. Cir. 2001), reviewing 56 FLRA 526 (2000); reconsideration denied, 56 FLRA 947 (2000)

The D.C. Circuit denied the union's petition for review of an Authority decision finding nonnegotiable, in part, a provision requiring the agency to grant official time to union officials for lobbying Congress on pending or desired legislation. The court agreed with the Authority that the provision was contrary to law and therefore nonnegotiable.  Thus, the court held that § 8012 of the Department of Defense Appropriations Act, Pub. L. No. 105-262, 112 Stat. 2279, 2299 (1998), prohibits the "provision because . . . official time may only be granted to the extent that it is consistent with all 'applicable laws and regulations.'"  269 F.3d at1122 (quoting NFFE Local 2015, 41 F.L.R.A. 1158, 1185 (1991)). 

U.S. Department of Justice, Washington, D.C. and U.S. Department of Justice, Office of the Inspector General, Washington, D.C. v. FLRA266 F.3d 778 (D.C. Cir. 2001), reviewing 56 FLRA 556 (2000).

The D.C. Circuit denied the agency's and its Inspector General's petition for review of an Authority decision finding an unfair labor practice when Office of the Inspector General (OIG) agents denied an employee's request for union representation in a criminal investigation.  The union representing the employee filed an unfair labor practice charge, claiming that the agents' denial of the employee's request to have union representation was in violation of 5 U.S.C. 7114(a)(2)(B), which requires an agency to give an employee the opportunity to have a union representative at an interrogation under certain circumstances.  The FLRA found that the OIG agents had violated the Statute by not granting the employee's request for representation based on the Supreme Court's holding in NASA v. FLRA, 527 U.S. 229 (1999)(NASA),  that OIG agents are "representatives" of their respective agencies.  The D.C. Circuit agreed that the NASA decision controlled, finding no distinction in NASA between administrative and criminal investigations with regard to whether OIG agents are "representatives" of agencies.  

Association of Civilian Technicians, Texas Lone Star Chapter 100 and Association of Civilian Technicians, Wisconsin Chapter 26 (Army) v. FLRA, 250 F.3d 778 (D.C. Cir. 2001), reviewing 55 FLRA 1226 (2000); reconsideration denied, 56 FLRA 432 (2000).

The D.C. Circuit denied the unions' petition for review of an Authority decision finding the proposals outside the duty to bargain under 5 U.S.C. § 7117(a)(1), because they are inconsistent with 32 U.S.C. § 709(b) of the National Guard Technicians Act of 1968.   The unions sought review of an Authority decision finding nonnegotiable proposals prohibiting agency management from enforcing a military grade inversion policy because the proposals concern a military aspect of civilian technician employment. 

Department of Transportation, Federal Aviation Administration, Northwest Mountain Region, Renton, Washington v. FLRA, No. 99-1165 (D.C. Cir., May 18, 2001), reviewing 55 FLRA 293 (1999).

The agency sought review of an Authority decision finding an unfair labor practice for an agency's failure to comply with a final and binding arbitration award directing the agency to procure parking spaces for its employees at an airport.  The D.C. Circuit dismissed the case following a settlement.

Association of Civilian Technicians, Schenectady Chapter v. FLRA, 230 F.3d 377 (D.C. Cir. 2000), reviewing 55 FLRA 925 (1999).

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.

Association of Civilian Technicians, Texas Lone Star Chapter 100 and Association of Civilian Technicians, Wisconsin Chapter 26 (Army) v. FLRA, No. 00-1085, 2000 WL 1093314 (D.C. Cir. 2000), reviewing 55 FLRA 1226 (2000); reconsideration denied, 56 FLRA 432 (2000).

The D.C. Circuit ruled that it lacked jurisdiction over two unions' petition for review of an Authority negotiability decision because the petition was prematurely filed. The court agreed with the Authority that the unions' pending request for administrative reconsideration rendered the underlying Authority action nonfinal. The court further agreed that the Authority's subsequent issuance of a final order in the case, denying the request for reconsideration, did not cure the petition's prematurity.

Social Security Administration v. FLRA, 201 F.3d 465 (D.C. Cir. 2000), reviewing 55 FLRA 246 (1999).  

The D.C. Circuit granted the agency's petition for review and reversed the Authority's order that an agency pay post-judgment interest on liquidated damages awarded employees through arbitration under the Fair Labor Standards Act. The Authority had ruled that such interest was permissible under the Back Pay Act. The D.C. Circuit disagreed, holding that liquidated damages are not "pay, allowances, or differentials" within the meaning of the Act.

Georgia State Chapter, Association of Civilian Technicians v. FLRA, 184 F.3d 889 (D.C. Cir. 1999), reviewing 54 FLRA 654 (1998).

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.

National Association of Government Employees v. FLRA, 179 F.3d 946 (D.C. Cir. 1999), reviewing 54 FLRA 429 (1998), 54 FLRA 457 (1998), and 54 FLRA 360 (1998).

The D.C. Circuit denied the Unions' petitions for review of Authority decisions that three Agencies did not commit ULPs when they refused to bargain over matters 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. section 7106(b)(1)," constitutes a direction to agency personnel rather than an election to bargain under section 7106(b)(1).

David F. Power v. FLRA, 146 F.3d 995 (D.C. Cir. 1998), reviewing 52 FLRA 1390 (1997).

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).

U.S. Department of Transportation, Federal Aviation Administration, Washington, D.C. v. FLRA, 145 F.3d 1425 (D.C. Cir. 1998), reviewing 53 FLRA 139 (1997).

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.

U.S. Department of Justice, Immigration and Naturalization Service, Northern Region, Twin Cities, Minnesota v. FLRA, 144 F.3d 90 (D.C. Cir. 1998), reviewing 51 FLRA 1467 (1996) and 52 FLRA 1323 (1997).

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 even though a union is not obligated to provide representation to a bargaining unit employee in responding to a proposed removal, if it does provide representation, the union is entitled to exercise its right to request information under the Statute. 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.

American Federation of Government Employees v. FLRA, 144 F.3d 85 (D.C. Cir. 1998), reviewing 52 FLRA 1195 (1997).

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."

National Treasury Employees Union v. FLRA, 139 F.3d 214 (D.C. Cir. 1998), reviewing 52 FLRA 1159 (1997).

The D.C. Circuit denied in part and granted in part a petition for review of an Authority decision dismissing ULP charges against the Agency. The Agency had denied NTEU a permit to distribute literature on the sidewalks of an agency facility at which another union was the exclusive representative. The Authority determined (1) that the denial of a permit did not amount to unlawful assistance to the incumbent Union under section 7116(a)(3), and (2) that, applying the principles of Babcock & Wilcox, the permit denials did not discriminate against NTEU under section 7116(a)(1). The court affirmed the Authority's decision that the Agency did not unlawfully assist the incumbent. The court also found, however, that the Babcock & Wilcox rule did not protect the Agency's denial of permits to NTEU because the Agency did not have a general no-solicitation policy. Noting that the Authority was not required to adopt Babcock & Wilcox, the court remanded the case to the Authority to re-examine the question whether the Agency violated section 7116(a)(1). However, the court concluded that if the Authority determined that the Agency did violate section 7116(a)(1), the Authority was obliged to apply retroactively its newly adopted standard and award NTEU a remedy. The Authority's petition for re-hearing was denied.

Robert W. Wildberger, Jr. v. FLRA, 132 F.3d 784 (D.C. Cir. 1998), reviewing 51 FLRA 413 (1995).

The D.C. Circuit denied in part and granted in part a petition for review of an Authority determination dismissing three consolidated ULP complaints against the petitioner's former employing agency. The Authority had dismissed the complaints for lack of jurisdiction pursuant to section 7116(d) of the Statute, which bars issues that "can properly be raised under an appeals procedure" from being raised as ULPs. The court upheld the dismissal of two complaints concerning the petitioner's proposed removal and a threat. However, the court found that section 7116(d) did not bar the Authority's jurisdiction over the petitioner's disparate treatment complaint. Accordingly, the court remanded the disparate treatment complaint to the Authority for a determination on the merits.

American Federation of Government Employees, Council of GSA Locals, Council 236 v. FLRA, No. 99-1244 (D.C. Cir. Mar. 7, 2000)[unpublished decision], reviewing 55 FLRA 449 (1999).

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.

Federal Deposit Insurance Corporation v. FLRA, No. 98-1221 (D.C. Cir Aug. 3, 1998)[unpublished decision], 53 FLRA 1469 (1998)

The D.C. Circuit dismissed for lack of jurisdiction the Agency's petition for review of an Authority decision on exceptions to an arbitrator's award. The Authority had modified an arbitrator's award, which denied in part and sustained in part a grievance alleging that the Agency had violated the Fair Labor Standards Act. The Authority found that the award should have included the payment of liquidated damages and that it had disregarded the appropriate statute of limitations. The court agreed with the Authority that the court could not review the decision under 5 U.S.C. § 7123(a), and that the Supreme Court's ruling in Leedom v. Kyne did not apply.

Dennis R. Means v. Phyllis N. Segal, Chair, FLRA, No. 98-5170 (D.C. Cir Oct. 6, 1998)[unpublished decision], reviewing district court decision (D.D.C. Apr. 15, 1998); cert. denied, Dennis R. Means v. Phyllis N. Segal, Chair, FLRA, No. 98-7674(S. Ct. Mar. 1, 1999).

The D.C. Circuit summarily affirmed the district court's dismissal of an appeal of the General Counsel's refusal to issue unfair labor practice complaints and release information under the Freedom of Information Act. The district court determined that it lacked jurisdiction over the unfair labor practice claims and that the FLRA had properly withheld agency documents under Freedom of Information Act Exemptions 5, 7(C), and 7(D).

Stuart E. Bernsen v. FLRA, No. 98-1234 (D.C. Cir. Mar. 19, 1999)[unpublished decision], reviewing 53 FLRA 1541 (1998).

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.

National Association of Government Employees, Local R14-23 v. FLRA, No. 98-1520 (D.C. Cir. Sept. 24, 1999)[unpublished decision], reviewing 54 FLRA 1302 (1998).

The D.C. Circuit denied the Union's petition for review of an Authority negotiability decision. The court deferred to the Authority's determination that the subject of the Union's bargaining proposal is not a negotiable "condition of employment" as defined in 5 U.S.C. § 7103(a)(14) because it "relat[es] to the classification of any position."

American Federation of Government Employees, Local 2986 v. FLRA, 130 F.3d 450 (D.C. Cir. 1997), reviewing 51 FLRA 1549 (1996) and 51 FLRA 1693 (1996).

The D.C. Circuit 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.

Patent Office Professional Association v. FLRA, 128 F.3d 751 (D.C. Cir. 1997), seeking review of Case No. WA-CA-50352, cert. denied, 118 S. Ct. 1189 (1998).

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.

American Federation of Government Employees, National Border Patrol Council, Local 2366 v. FLRA, 114 F.3d 1214 (D.C. Cir. 1997), reviewing 51 FLRA 768 (1996) and 51 FLRA 1561 (1996).

The D.C. Circuit denied the union local's petition for review of the Authority's determination that the agency had not committed a ULP by refusing to bargain. The Authority's reasoning, upheld by the court, was that an agency is obligated to bargain if: (i) the exclusive representative requests "term negotiations"; (ii) the union requests bargaining consistent with the status quo after expiration of a collective bargaining agreement; or (iii) the request is an appropriate request for mid- term bargaining. The court held that the bargaining request was not made at the level of exclusive recognition, did not request bargaining consistent with the status quo, and could not have been a request for mid-term bargaining inasmuch as the collective bargaining agreement had expired at the time the request was made.

American Federation of Government Employees, Local 32 v. FLRA, 110 F.3d. 810 (D.C. Cir. 1997), reviewing 51 FLRA 491 (1995).

In this negotiability case, the D.C. Circuit upheld the Authority's decision finding nonnegotiable a proposal establishing competitive areas for use in reductions-in-force. The court agreed with the Authority that the union's proposal purports to define supervisors' competitive areas, along with those of unit employees, and thus was beyond the scope of the agency's duty to bargain as discussed by the court in United States Department of the Navy, Naval Aviation Depot, Cherry Point, North Carolina v. FLRA, 952 F.2d 1434 (D.C. Cir. 1992).

Department of the Air Force, Scott Air Force Base, Illinois v. FLRA, 104 F.3d 1396 (D.C. Cir. 1997), reviewing 51 FLRA 675 (1995).

The D.C. Circuit agreed with the Authority's decision on remand in this case and enforced the Authority's order. The Authority had ruled that section 7114(b)(4) of the Statute required the agency to disclose to the union a disciplinary letter issued to a supervisor who allegedly used physical force against a bargaining unit employee. The court agreed with the Authority that the union had a "particularized need" for the letter, and that the union's need was not outweighed by "countervailing interests" against disclosure. The court also held that the Privacy Act did not prohibit disclosure of the letter.

National Federation of Federal Employees, Local 589 v. FLRA, 73 F.3d 390 (D.C. Cir.1996), reviewing 49 FLRA 171 (1994); reconsideration denied, 49 FLRA 701 (1994).

The D.C. Circuit affirmed the Authority's decision that the Department of Veterans Affairs (VA) did not commit unfair labor practices when it denied three probationary registered nurses union representation at peer review proceedings. The VA Secretary had issued a regulation providing that such employees had no entitlement to legal or other representation at peer review meetings. Agreeing with the Authority, the court held that, under the VA's statute, the VA Secretary exercises complete discretion over peer review procedures affecting VA professional medical personnel. The court stated that this holding applied whether the rights asserted by the employees were characterized as representational rights subject to one provision of the VA's statute, or as collective bargaining rights subject to another provision. Accordingly, the court denied the union's petition for review.

Department of the Army, United States Army Commissary, Fort Benjamin Harrison, Indianapolis v. FLRA, 56 F.3d 273 (D.C. Cir. 1995), reviewing 48 FLRA 6 (1993).

The D.C. Circuit, applying the doctrine of sovereign immunity, overturned an Authority remedial order requiring an agency to reimburse unit employees for money lost as a result of a change in the agency's pay lag policy. The Authority ordered the reimbursement remedy after the agency had changed the date it delivered paychecks to employees prior to completion of bargaining with the union. The court held that the doctrine of sovereign immunity barred the Authority from directing such a reimbursement remedy. The court ruled that the Statute's remedial provisions were not clear and specific enough to waive the immunity of the United States to an award of such money damages.

Patent Office Professional Association v. FLRA, 47 F.3d 1217 (D.C. Cir. 1995), reviewing 48 FLRA 129 (1993).

In this case, the D.C. Circuit agreed with the Authority's determination that three Union bargaining proposals were nonnegotiable either as procedures or as appropriate arrangements under section 7106(b)(2) and (3) of the Statute. The Union submitted the proposals at issue in response to the Patent and Trademark Office's decision to revise the performance appraisal plans for patent classifiers. The Court determined, in agreement with the Author