Closed Court Litigation

  Clear

 
 United Power Trades Organization v. FLRA, No. 10-1065 (D.C. Cir. 2011), reviewing 64 FLRA (No. 69) 440 (2010)

In a per curiam order, the D.C. Circuit denied the union's petition for review of an Authority decision denying the union’s exceptions to an arbitrator’s award.  In its decision, the Authority found that the award, which denied a grievance over the agency’s denial of a request for official time, was not contrary to sections 7102 or 7114 of the Statute and did not fail to draw its essence from the parties’ agreement. 
 

AFGE, AFL-CIO, Local 2798, et al. v. Pope, et al., No. 1:10-01012 (D.D.C. 2011)

The district court granted the FLRA's motion to dismiss a complaint concerning the General Counsel's declination to issue an unfair labor practice complaint and decision to deny plaintiffs' request for reconsideration of the General Counsel's declination.

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."

American Federation of Government Employees,
AFL-CIO, Local 1592 v. FLRA, 288 F.3d
1238
(10th Cir. 2002), reviewing Case No. 0-NG-2577.

The Tenth Circuit affirmed the Authority’s decision dismissing the union’s negotiability appeal for failure to serve the "head of the agency." Under 5 U.S.C. § 7117(c)(2)(B), a union filing a negotiability appeal with the Authority must furnish a copy of the petition to the "head of the agency." The union claimed that service on the Secretary of the Air Force met the statutory requirements in this case, and declined to comply with an Authority order to serve the Secretary of Defense. The court agreed with the Authority’s interpretation of the Statute, and concluded that for this particular case, the Secretary of Defense is the "head of the agency" for purposes of the service requirements of § 7117(c)(2)(B). The court also rejected the union’s arguments that the Authority’s actions were "arbitrary and capricious," noting in particular that the Authority’s order to show cause gave the union adequate notice of the service requirements and an opportunity to take corrective action.

American Federation of Government Employees,
AFL-CIO, Local 2263 v. FLRA, No. 05-9543 (10th Cir.
2006)
, reviewing 60
FLRA 791
.

The Tenth Circuit denied the union's petition for review. The union sought review of an Authority decision finding that the agency did not commit ULPs for failing to provide the union with requested information under § 7114(b)(4) of the Statute because the union did not meet its burden of articulating and establishing a particularized need for the information.

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).

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.

American Federation of Government Employees, Local 1164 v. FLRA, No. 11-1433 (D.C. Cir. 2012).

In an unpublished opinion, the Court denied the union's petition for review of an Authority decision that a proposal concerning an office relocation and floor plan was outside the duty to bargain.

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.

American Federation of Government Employees, Local
1617, Arthur Celestino, and American Federation of Government Employees,
Council Number 214 v. FLRA, No. 03-51264
(5th Cir. 2004)
, reviewing 58 FLRA 63,
reconsideration denied, 58 FLRA 183 (2002).

The Fifth Circuit, per curiam, has affirmed the decision of the District Court for the Western District of Texas dismissing the union's suit for lack of subject matter jurisdiction. The union had sought reversal of an Authority arbitration decision.

American Federation of Government Employees,
Local 1647  v. FLRA, 388 F.3d 405 (3d Cir.
2004)
, reviewing 59 FLRA 369 (2003).

The Third Circuit denied the union’s petition for review. The Authority’s decision held nonnegotiable a union proposal requiring the agency to use its Army Working Capital Fund (AWCF) to reimburse employees for personal losses such as forfeited airline tickets, hotel deposits, and the like, resulting from the cancellation of previously approved leave. The union argued that because the AWCF was a revolving fund, the money collected was at least in part nonappropriated funds that could be used to reimburse employees.   Rejecting this argument, the court agreed with the Authority’s reasoning that the AWCF should be treated as an “on-going or continuing appropriation.”  However, the court disagreed with the Authority’s blanket generalization that revolving funds are always appropriations since the test depends on “whether the particular revolving fund is financed-or is permitted to be financed-by appropriated funds.”  The court therefore examined the AWCF to see whether Congress had clearly expressed its intent to separate the agency from general federal revenues.  The court held in this regard that Congress intended that the AWCF was to be supported by appropriated funds.

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, 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.

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.

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).

American Federation of Government Employees, Local
3936, AFL-CIO v. FLRA, 239 F.3d 66
(1st Cir. 2001)
, reviewing 56 FLRA 174 (2000).

The First Circuit affirmed the Authority's final decision and order finding that in an unfair labor practice proceeding, the Authority lacked jurisdiction over National Guard technician terminations. The court agreed with the Authority "that the plain language of section 709(f)(4) of the Technicians Act categorically precludes review of technician terminations under the Labor-Management Act."

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.

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. 

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,
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.

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.

The district court granted the Authority's motion to dismiss for lack of subject matter jurisdiction a complaint seeking review of an Authority decision in a representation case. The Authority had affirmed a Regional Director's determination excluding certain employees from a bargaining unit because they were engaged in security work that directly affected national security. The court agreed with the Authority that the court could not review such actions under 5 U.S.C. § 7123(a), and that the Supreme Court's decision in Leedom v. Kyne did not apply. The court recognized that section 7123(a) authorizes only the courts of appeals to review the Authority's orders, and precludes any court from reviewing an order of the Authority involving a representation matter.

Anthony Carter v. FLRA, No. 11-2260  (4th Cir. 2012)

The court dismissed a petition for review of an Authority decision, American Federation of Government Employees Council of Prison Locals 33, Local 3976 and United States Department of Justice, Federal Bureau of Prisons Federal Correctional Institution, Estill, South Carolina, 0-AR-4755, 66 F.L.R.A. (No. 49) 289 (2011). In its decision, the Authority denied the union's execptions to an arbitrator's award that denied the union's grievance because it was procedurally deficient under the parties' master agreement.

Arkansas National Guard v. FLRA, Nos. 99-1563 & 99-1974 (8th Cir. Oct. 14, 1999)[unpublished decision], reviewing 55 FLRA 63 (1999).

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 or approved by the Solicitor General. The Authority's order was enforced.

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. 

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, Inc. v. FLRA, No. 99-2562 (D.D.C. Mar. 31, 2001)[unpublished decision], reviewing 55 FLRA 657 (1999).

The district court granted the Authority's motion to dismiss the complaint in this case for lack of subject matter jurisdiction.  The plaintiff sought review of an Authority decision denying the consolidation of various bargaining units of National Guard civilian technicians into a single unit.  First, the court determined that § 7123 precluded judicial review of appropriate unit determinations.  The court also agreed that certain exceptions to the bar raised by section 7123, such as the Supreme Court's decision in Leedom v. Kyne, did not apply.

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, Puerto Rico Army Chapter v. FLRA, 269 F.3d 1112(D.C. Cir. 2001), reviewing 56 FLRA 493 (2000); reconsideration denied, 56 FLRA 807 (2000).

[no summary available]

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.

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.

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.

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. 

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.

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)).

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.

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, 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.

Chavez v. FLRA, No. 12-60156 (5th Cir. 2012)

The court dismissed, for lack of subject matter jurisdiction, a petition for review of the General Counsel's decision not to issue an unfair labor practice complaint.

Corrigan v. FLRA, No.12-1035 (D.C. Cir. 2012)

The court granted the Authority's motion to dismiss, for lack of jurisdiction, a petition challenging the Office of General Counsel's denial of petitioner's unfair labor practice charges.

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).

Dennis R. Means v. Phyllis N. Segal, Chair,
FLRA
, No. 1:97CV01301 (D.D.C. Apr. 14, 1998)[unpublished decision].

The district court adopted the report and recommendation of the magistrate judge and granted the Authority's motion to dismiss or, in the alternative, for summary judgment. The complaint sought to compel the FLRA's General Counsel to issue unfair labor practice complaints and to obtain documents withheld by the General Counsel under the Freedom of Information Act. Recognizing that the General Counsel has unreviewable discretion to decline to issue unfair labor practice complaints, the Court dismissed the complaint's unfair labor practice claims because it lacked subject matter jurisdiction. The Court also granted the Authority's motion for summary judgment with regard to the plaintiff's Freedom of Information Act claim. It found that the portions of the attorney notes and the investigative reports withheld from the Plaintiff were protected from disclosure by the deliberative process privilege and the attorney-client and work product privileges. The court also upheld the General Counsel's claim that Freedom of Information Act Exemption 7(C) (protection of privacy interests of third parties) and Freedom of Information Act Exemption 7(D) (protection of identity of confidential sources) protected from disclosure several documents created during the investigation of the Unfair labor practice charges.

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).

The Supreme Court overturned Authority rulings on the release of employee home addresses and held that the Privacy Act prevents disclosure of home addresses to collective bargaining representatives who had requested the information under the Statute. The Court had granted review of a Fifth Circuit decision (975 F.2d 1105 (5th Cir. 1992)) enforcing Authority disclosure orders. The Court ruled that the Privacy Act's bar applied because disclosure was not required under Exemption 6 of the Freedom of Information Act (FOIA), which exempts from disclosure personnel files "the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." The Court held that under Dep't of Justice v. Reporters Comm. for the Freedom of Press, 489 U.S. 749 (1989), the only public interest to be balanced against the employees' privacy interest in keeping their home addresses private is the extent to which the FOIA's central purpose of opening agency action to public scrutiny would be served by disclosure.

The Fifth Circuit held that pendency of a bargaining impasse before the Federal Service Impasses Panel (FSIP) did not require an agency to refrain from exercising a management right by implementing changes in conditions of employment while the impasse was being resolved. The Authority had held that the Agency's unilateral implementation of changes in working conditions during FSIP impasse resolution procedures was an unfair labor practice.

The Fifth Circuit agreed with the D.C. Circuit's decision in NLRB v. FLRA, 952 F.2d 523 (D.C. Cir. 1992), adopting a standard of "particularized need" for union data requests under § 7114(b)(4) of the Statute. The court found in this case that the Union did not meet that standard in requesting numerous documents claimed to be needed to investigate a possible grievance. The court also said the request was so voluminous as to make the documents not "reasonably available" within the meaning of § 7114(b)(4).

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.

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, 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.

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.

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.

Edward S. Davidson, Regional Director, Boston Region,
FLRA v. Puerto Rico National Guard, 156th Airlift Wing, Carolina, Puerto
Rico
, No. 00-1015 (1st Cir. May 12, 2000)[unpublished decision],
vacating and remanding No. 99-1478(PG) (D.P.R. 1999).

The Authority sought review of a district court decision denying temporary injunctive relief in a ULP case. After the Authority issued a final decision on the underlying ULP, the First Circuit, at the Authority's request, vacated the district court's decision and remanded the case to the district court with directions to dismiss the original complaint for injunctive relief as moot.

The Ninth Circuit reversed an Authority decision dismissing an individual's unit clarification petition filed pursuant to section 7111 of the Statute. Citing 5 C.F.R. § 2422.2(c), the Authority had determined that only agencies and unions could file unit clarification petitions and that, therefore, the individual lacked standing to file such a petition. Ruling that it had jurisdiction under section 7123 of the Statute to review Authority decisions on petitions filed under section 7111, the court disagreed and reversed the Authority's determination.

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.

Fernandez v. FLRA, No. 06-0278-AG (2d Cir. 2007) [unpublished
judgment], reviewing Case No. BN-CO-05-0131.

The Second Circuit dismissed for lack of subject matter jurisdiction a petition for review of the General Counsel's refusal to issue a ULP complaint.

FLRA v. Dep't of Justice, et al., 527 U.S. 1031
(1999)
, reviewing 137 F.3d
683 (2d Cir. 1997)
.

The Supreme Court granted the Authority's petition for certiorari and vacated the Second Circuit's denial of summary enforcement of an Authority decision that found that the Agency had violated its employees' rights under section 7114(a)(2)(B) of the Statute. The Court directed the Second Circuit to reconsider its ruling in light of the Court's recent decision in NASA v. FLRA, 527 U.S. 229 (1999).

FLRA v. National Aeronautics and Space Administration,
Washington, D.C. and NASA, Office of the Inspector General
, 120 F.3d
1208 (11th Cir. 1997), reviewing 50 FLRA 601 (1995),
aff'd, NASA v. FLRA, 119 S. Ct. 1979 (1999).

The Eleventh Circuit enforced the Authority's decision that the agency had committed a ULP by preventing the exclusive representative from actively participating in an investigatory examination of a bargaining unit employee. In so holding, the court agreed with the Third Circuit in Defense Criminal Investigative Service v. FLRA, 855 F.2d 93 (3d Cir. 1988), that an Inspector General investigator is a "representative of the agency" within the meaning of section 7114(a)(2)(B) of the Statute, and must respect Weingarten rights when conducting employee interviews.

FLRA v. Puerto Rico National Guard, Puerto Rico Air
National Guard, San Juan, Puerto Rico
, No. 99-1293 (1st Cir. May 25,
2000)[unpublished decision], enforcing Case No. AT-CA-70505.

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."

FLRA v. U.S. Department of Justice, Federal Bureau
of Prisons, Federal Correctional Institution, Forrest City, Arkansas v.
FLRA, 395
F.3d 498 (8th Cir. 2005)
enforcing 57 FLRA 808 (2002).

FLRA seeks enforcement of decision finding ULP for agency's refusal to provide the union with certain documents relating to the discipline of a unit employee. (02-1239 (D.C. Cir. Feb. 24, 2003)

FLRA v. U.S. Department of Justice, No. 97-4001
(2d Cir. Oct. 7, 1999)[unpublished decision], enforcing Case Nos.
BN-CA-50149, BN-CA-50156, BN-CA-50698, BN-CA-50700, and BN- CA-50701.

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, 119 S. Ct. 1979 (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.

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.

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.

International Federation of Professional and Technical Engineers, Local 259 and Johnny Boyd v. FLRA, No. 09-4129 (6th Cir. 2010) [unpublished judgment], reviewing 63 FLRA No. 159 (2009).

The court dismissed, for lack of jurisdiction, a petition by a union and a bargaining unit member seeking review of an Authority decision setting aside an arbitrator’s award as deficient because it resolved a classification matter within the meaning of section 7121(c)(5) of the Statute.

Johanna K. Begay and National Federation of Federal Employees v. U.S. Department of the Interior (Bureau of Indian Affairs) Navajo Area Office, 145 F.3d 1313 (Fed. Cir. 1998), reviewing 53 FLRA 984 (1997).

The Federal Circuit dismissed for lack of jurisdiction an individual's petition for review of an Authority decision overturning an arbitration award. Although not the named respondent, the Authority participated in the case as an amicus curiae. The Authority had set aside an arbitration award, which sustained a grievance challenging the use of certain reduction-in-force procedures resulting in Begay's separation from service. The Court determined that it did not have jurisdiction to review the Authority's decision under 28 U.S.C. § 1296(a)(2) and 3 U.S.C. § 431. The Court also found that no other circuit court would have jurisdiction to review the Authority's decision. The Court agreed in this regard with other courts of appeals that because a unfair labor practice was not an explicit or a necessary ground for the Authority's decision, no court would have jurisdiction under section 7123(a) of the Statute.

Luke Air Force Base, Arizona v. FLRA, 208 F.3d 221 (9th Cir. Dec. 30, 1999) (table), cert. denied, 121 S. Ct. 60 (2000), reviewing 54 FLRA 716 (1998).

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).

Macharia v. FLRA, No. 99-1537 (10th Cir. May
16, 2000)[unpublished decision], reviewing Case Nos. DE- CO-60029,
DE-CO-60755, and DE-CA-80162.

The Tenth Circuit dismissed as untimely an individual's appeal of a district court decision dismissing a challenge to the General Counsel's refusal to issue an unfair labor practice complaint.

Major General James H. Lipscomb III, Adjutant
General of the State of Mississippi v. FLRA, et al., 200 F.Supp.2d 650
(S.D. Miss. 2001), reviewing 57 FLRA 337
(2001)
.

The district court dismissed the plaintiffs' complaint, holding that the plaintiffs' claims for relief are without merit as a matter of law.  The plaintiffs sought to enjoin an election directed by the Authority in a unit of dual-status National Guard technicians, arguing that as a state agency, the Authority cannot compel the Guard to perform a federal function.  The court agreed with the Authority's conclusion that while the Mississippi National Guard is a state agency, it is also a federal agency for purposes of the Statute.  In addition, the court held that the Adjutant General, while serving at the state level, is responsible for personnel actions of guard technicians.  Thus, the Adjutant General acts in a federal capacity as an employer.  Furthermore, the court disagreed with the plaintiffs' argument that in accordance with the Supreme Court's opinion in Printz v. United States, 521 U.S. 898 (1997), the Authority is violating the plaintiffs' Tenth and Eleventh Amendment rights by purporting to compel a state agency to perform a federal function. Finally, the court held that the Feres doctrine does not preclude the Authority from exerting jurisdiction over the Mississippi National Guard and/or the Adjutant General since the technicians can organize and bargain over civilian aspects of their employment.   

The Fifth Circuit affirmed the decision of the United States Southern District Court for Mississippi holding that the Mississippi Army National Guard is subject to the Authority's jurisdiction.  The Mississippi State Guard appealed a district court decision dismissing their complaint.  In the district court proceeding, the Guard sought to enjoin an election directed by the Authority in a unit of dual-status technicians.  The district court agreed with the Authority's conclusion that while the Mississippi National Guard is a state agency, it is also a federal agency for purposes of the Statute.  In addition, the court held that the Adjutant General, while serving at the state level, is responsible for personnel actions of guard technicians.  Thus, the Adjutant General acts in a federal capacity as an employer.

NASA v. FLRA, 527 U.S. 229 (1999), reviewing FLRA v. Nat'l Aeronautics and Space Admin., Washington, D.C., 120 F.3d 1208 (11th Cir. 1997).

The Supreme Court affirmed the Authority's (50 FLRA 601 (1995)) and the Eleventh Circuit's decisions (FLRA v. Nat'l Aeronautics and Space Admin., 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.

Nat'l Fed'n of Fed. Employees v. United States Dep't
of the Interior, 526 U.S. 86
(1999)
, reviewing United States Dep't of the Interior v. FLRA ,
132
F.3d 157 (4th Cir. 1997)
.

The Supreme Court remanded the Fourth Circuit's decision in which the Fourth 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 in United States Dep't of the Interior v. FLRA, 132 F.3d 157 (4th Cir. 1997), 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.

National Air Traffic Controllers Ass'n, AFL-CIO v. Federal Service Impasses Panel, No. 08-5479 (D.C. Cir.)

The D.C. Circuit issued a decision reversing and remanding a decision of the district court in a declaratory judgment proceeding involving the Federal Service Impasses Panel.  The district court dismissed for lack of jurisdiction the Union's suit seeking a declaratory judgment, 582 F.Supp.2d 18 (D.D.C. 2008).  The Union had sought a ruling that the FSIP had jurisdiction over an inpasse with the Agency.  The Union also sought an injunction requiring the FSIP to assert jurisdiction over all such pending and future impasses.

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 Air Traffic Controllers Association,
AFL-CIO v. FLRA, No. 1:04CV00138
(D.D.C. Cir. Feb. 22, 2005).

The U.S. District Court for the District of Columbia District has dismissed the union's complaint. The unions sought declaratory and injunctive relief against FSIP, challenging FSIP decisions declining to assert jurisdiction over certain bargaining impasses with the FAA concerning employee compensation. (03 FSIP 144; 149, 150, 151 and 157).

National Association of Agriculture Employees v. FLRA, 473 F.3d 983 (9th Cir. 2007), reviewing
61 FLRA 485 (2006).

The Ninth Circuit granted the Authority’s motion to dismiss for lack of jurisdiction the union’s petition for review of an Authority determination that the bargaining unit’s agricultural specialists are not professional employees within the meaning of the Statute. The Court held that the Authority’s decision involved an appropriate unit determination under § 7112 of the Statute. 

National Association of Air Traffic Specialists v. FLRA, No. 03-15467-CC (11th Cir. Dec. 14, 2004), [unpublished decision], reviewing 59 FLRA 261 (2003).

The Eleventh Circuit denied, per curiam, the union’s petition seeking review of an Authority decision adopting an ALJ determination. The ALJ determined that the General Counsel was entitled to summary judgment when the union failed to answer a ULP complaint. The complaint alleged that the union violated the duty of fair representation by failing to poll all bargaining unit members in determining a watch schedule. Regarding the Authority’s refusal to consider several claims that the union had asserted for the first time in its exceptions to the ALJ’s determination, the court explored whether manifest injustice would result if it honored the invocation of this procedural bar. Based on the exceedingly limited scope of the cease and desist order issued against the union, the court concluded there was no basis for overturning the Authority’s procedural bar ruling.

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).

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."

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 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 Independent Labor v. FLRA, No. 11-1299 (D.C. Cir. 2012)

The court denied the union's petition for review of an Authority decision (65 FLRA (No. 220) 1052 (2011)), in which the Authority denied exceptions to an Administrative Law Judge's recommendation that a consolidated complaint be dismissed.  The complaint alleged that the agency violated the Statute by repudiating an agreement it reached with the charging parties regarding parking at the agency's facility.  The ALJ, affirmed by the Authority, found that the agreement was contrary to the Statute because it sought to regulate the conditions of employment in another bargaining unit outside the duty to bargain.

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 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 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.

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.

National Labor Relations Board v. FLRA, Nos.09-1119 and 09-1148 (D.C.Cir. 2010), reviewing 63 FLRA 104 (2009)

 The D.C. Circuit granted the agency's petition to review a decision in which the Authority found that the agency violated section 7116(a)(1), (5), and (8) of the Statute by refusing to bargain with the union as the exclusive bargaining representative of employees in a consolidated bargaining unit.  The court denied that FLRA's cross-application for enforcement. 

National Treasury Employees Union v, FLRA, No. 10-1857 (4th Cir. 2011)

The Union sought review of the Authority's decision (64 FLRA (No. 156) 833 (5/28/2010)) denying exceptions filed by both the Agency and the Union to an arbitrator's award.  The arbitrator found that the Agency violated the collective bargaining agreement and sections 7116(a)(1), (2), and (5) of the Statute when it advised all managers and employees that it would process employees' dues revocation forms even if the forms had not been signed or initialed by a Union official.  However, the arbitrator also found that a remedy the Union requested, reimbursement of dues from all of the employees whose revocation forms were processed without a Union official's signature, was not appropriate.  The court denied the union's petition for review.

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

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

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.

National Treasury Employees Union v. FLRA, 112 F.3d 402 (9th Cir. 1997), reviewing 50 FLRA 656 (1995).

The Ninth Circuit dismissed for lack of subject matter jurisdiction a union petition for review of an Authority arbitration review decision that did not involve an unfair labor practice. The Authority had set aside an arbitrator's award finding that the Custom Service violated applicable law when it implemented a new procedure for vessels to make entry to ports. In its opinion, the court rejected as "strained" the D.C. Circuit's statutory construction and holding in a similar case, where that court found jurisdiction to review a similar Authority decision. See United States Department of the Treasury v. FLRA, 43 F.3d 682 (D.C. Cir. 1994). Instead, the Ninth Circuit relied upon a plain reading of 5 U.S.C. § 7123(a) to find that FLRA arbitration review decisions, including a determination as to whether a grievance alleges a violation of a law that affects conditions of employment, are not subject to judicial review.

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.

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, 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.

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.  

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 Treasury Employees Union v. FLRA,
418
F.3d 1068 (9th Cir. 2005)
, reviewing 59 FLRA 119
(2003).

The Ninth Circuit denied the union’s petition seeking review of an Authority decision that affirmed an agency’s disapproval of a collective bargaining agreement provision. The provision would have provided agency employees with additional compensation for time spent commuting from home to a temporary work site within the employee’s official duty station. The court agreed with the Authority’s conclusion that the provision conflicted with an OPM government-wide regulation that excludes compensation for normal home to work travel. The court rejected the union’s argument that the provision was not in conflict with OPM’s regulation because the regulation sets only minimum entitlements under the Fair Labor Standards Act (FLSA) that may be modified by negotiated agreements.

National Treasury Employees Union v. FLRA, 435
F.3d 1049 (9th Cir. 2006)
, reviewing 59 FLRA 815
(2004).

The Ninth Circuit denied the union’s petition seeking review of an Authority decision finding nonnegotiable a proposal providing that transferred employees will continue to receive for 3 years the geographically-based pay differential of the office from which the employees are transferred where that differential is higher than the differential of the area to which the employees are transferred.

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 Treasury Employees Union v. FLRA, 511 F.3d 893 (9th Cir. 2007) (per curiam), reviewing
61 FLRA 272 (2005).

In a per curiam decision, the Ninth Circuit denied the union’s petition for review of an Authority decision dismissing complaints alleging that the agency committed ULPs by improperly implementing new inspection assignment changes. This case raised the identical issues as Nat’l Treasury Employees Union v. FLRA, 453 F.3d 506 (D.C. Cir 2006) and the 9th Circuit “adopt[ed] as its own” the rationale of the D.C. Circuit.

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, 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, 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.

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.

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.

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 Authority, that the first proposal, addressing situations involving other employees over whom a classifier had no control, would improperly limit management's ability to hold a classifier accountable for his or her ability to facilitate and expedite the work of other patent classifiers and patent examiners. The Court also rejected the last two proposals, finding that they would intrude substantively upon management's ability to direct employees and to assign them work requiring the exercise of judgment. The proposals effectively prohibited the agency from holding a classifier accountable for his or her performance in any situation that the agency had not anticipated and addressed in writing. Accordingly, the Court denied the Union's petition for review.

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.

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.

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.

Roger Robles, Jr. v. FLRA, No. 99-60628 (5th
Cir. 1999)[unpublished decision].

The court dismissed an individual's appeal of the General Counsel's refusal to issue an unfair labor practice complaint.

The Second Circuit dismissed for lack of subject matter jurisdiction a petition for review of the General Counsel's refusal to issue a ULP complaint. The court reasoned that the decision was not a "final order" within the meaning of section 7123(a) of the Statute.

Securities and Exchange Commision v. FLRA, No. 08-1256 (D.C. Cir. 2009)

The court denied the agency's petition for review and granted the Authority's cross-petition for enforcement of an Authority decision and order, at 62 F.L.R.A. (No. 82) 432 (2008), in which the Authority held that the agency committed unfair labor practices when it terminated the existing system of within-grade increases and quality-step increases without bargainng with the union to the extent required by the Statute.

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.

Steven Ivey v. FLRA, NTEU, et al., Civil Action No. 2:10-cv-00064 (E.D.N.C. 2011)

The court dismissed a complaint arising from plaintiff's 2001 removal from his position at a federal agency.  Plaintiff's complaint against the FLRA concerns the decision of the Office of the General Counsel to dismiss his unfair labor practice charges.

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.

Taylor v. Kelly, et al., No. 2:11-cv-02540-JTF-dkv (U.S.D.C., W.D. Tenn.)

The court granted the Authority's motion to dismiss, with prejudice, all claims against the Chairman concerning the General Counsel's decision not to file an unfair labor practice charge against the agency. 

Tinker Air Force Base, Oklahoma City Air Logistics
Center, Oklahoma City, Oklahoma v. FLRA, 321 F.3d
1242
(10th Cir. 2002), reviewing Case No. DA-CA-90328.

The Tenth Circuit dismissed the agency’s petition for review of an unexcepted-to-ALJ decision for lack of subject matter jurisdiction and enforced the Authority’s order adopting the ALJ decision. The agency’s exceptions had not been received by the Authority within the prescribed time limit because they had not been addressed as required by Authority’s regulations and as the agency had been instructed by the ALJ. The court found that by failing to file timely exceptions, the agency had failed to urge its objections before the Authority as required by § 7123(c) of the Statute. In so holding, the Court rejected the agency’s arguments that, among other things, the failure to file timely exceptions should be excused because to do so would have been futile. The Court held that the mere fact that there was Authority precedent contrary to the agency’s position was insufficient to establish futility.

The Fourth Circuit denied enforcement to an Authority decision finding that the Department of Energy (the Department) committed unfair labor practices under section 7116(a)(1), (5) and (6) of the Statute by refusing to approve a contract provision that had been included in the parties' collective bargaining agreement at the direction of the Federal Service Impasses Panel. The provision would have required midterm bargaining on union-initiated proposals not contained in or covered by the collective bargaining agreement. The court relied on its decision in Social Security Administration v. FLRA, 956 F.2d 1280 (4th Cir. 1992), in which the court held that it was not an unfair labor practice for an agency to refuse to bargain on a union-initiated mid-term bargaining demand.

U.S. Department of Commerce, Patent and Trademark Office v. FLRA, No. 11-1019 (D.C. Cir. 2012)

The court granted the agency's petition for review of an Authority decision, 65 F.L.R.A. (No. 62) 290 (2010), in which the Authority dismissed in part and denied in part exceptions to an arbitrator's award that found the agency repudiated an enforceable provision of a collective bargaining agreement concerning the pay rate of patent examiners, and thereby committed an unfair labor practice. The court granted the peition on the basis that, under the collateral estaoppel doctrne, the Authority was bound by its earlier decision concluding that the contract provision did not constitute an appropriate arrangement.

U.S. Department of Homeland Security, Customs and Border Protection v. FLRA, No. 10-1282 (D.C. Cir. 2011)

The Agency sought review of the Authority's decision (64 FLRA (No. 190) 989 (7/14/2010)) denying exceptions filed by the Agency to an arbitrator's award.  The arbitrator found that the Agency committed a ULP by failing to give the Union notice and an opportunity to bargain over the impact and implementation of changes in assignment policies.  The court denied the Agency's petition for review.

U.S. Department of Justice, Federal Bureau of Prisons v. FLRA, No. 10-1089 (D.C. Cir. 2011)

The Agency sought review of the Authority's decision (64 FLRA (No. 95) 559 (3/5/2010) denying the Agency's exceptions to an arbitrator's award.  In its decision, the Authority found that the Agency violated section 7116 (a)(1) and (5) of the Statute and the parties' agreement by refusing to bargain over the impact and implementation of a change involving correctional service rosters.  The Agency's petition for review was granted.

The Fifth Circuit reversed an Authority negotiability decision concerning consultations between employees and their union representatives. The Authority had found negotiable a proposal that employees be given up to 48 hours to consult with a union representative before being required to provide a written report or an oral statement concerning a shooting incident. The court held that the proposal was neither a negotiable procedure under § 7106(b)(2) of the § 7106(b)(3).

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.

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.

U.S. Dep't of the Air Force v. FLRA, No. 10-1299 (D.C. Cir. 2011)

The Court granted the agency's petition for review of an Authority decision, 64 FLRA (No. 210) 1194 (7/30/2010), on the union's negotiability appeal involving four proposals.  The Authority found three of the proposals to be outside the duty to bargain.  However, the Authority found the fourth proposal, that the agency provide cleaning services for uniforms that bargaining unit employees are required to wear in the performance of their civilian duties, to be within the duty to bargain.   The Court reversed the Authority's decision, finding that the proposal would require the agency to make an unauthorized expenditure.

U.S. Department of the Air Force, Luke Air Force Base v. FLRA, No. 11-1281 (D.C. Cir. 2012)

The court denied the agency's petition for review of a decisionin which the Authority found within the duty to bargain two proposals addressing aspects of the agency's reduction-in-force process.

U.S. Department of the Interior, Bureau of
Reclamation, Yuma Area Office v. FLRA, 279 F.3d 762  (9th
Cir. 2002), reviewing 56 FLRA 372
(2000)
; decision and order on remand, 57 FLRA 879
(2002)
.

The Ninth Circuit reversed and remanded an FLRA decision ordering the agency to bargain in good faith over a proposal on Sunday premium pay. That benefit had been included in a 1968 negotiated agreement between the agency and a union representing bargaining unit employees. The Authority held that this agreement provision satisfied the requirement under § 704 of the Civil Service Reform Act, that in order for an otherwise nonnegotiable pay matter to be negotiable under that section, it must have been the subject of negotiation prior to August 19, 1972. The agency argued that this requirement was not met because, although Sunday premium pay was referenced in the 1968 agreement, it was simply listed as a statutory entitlement. It was not, the agency argued, the product of give-and-take negotiations. The Ninth Circuit agreed with the agency and reversed the Authority. The court of appeals held that the listing of a statutory benefit in a negotiated agreement does not constitute the kind of negotiations required in § 704.

U.S. Department of the Navy, Naval Underseas Warfare Center Division, Newport, R.I. v. FLRA , No.10-1304 (D.C. Cir. 2012)

The Agency sought review of an Authority decision (64 FLRA (No. 199) 1136 (7/29/2010)) denying the Agency's exceptions to an arbitrator's award.  The arbitrator found that the Agency violated the parties' collective bargaining agreement and past practice by failing to bargain with the Unions before removing Agency-purchased bottled water from its buildings.  The D.C. Circuit granted the petition for review and remanded to the Authority to determine whether the Agency's tap water supply was safe.