Federal Labor Relations Authority
Office of the Solicitor
Closed Court Litigation
(Current As of 07/31/2008)

Ninth Circuit

U.S. Department of Treasury-Internal Revenue Svc. v. FLRA, 521 F.3d 1148 (9th Cir. 2008), reviewing 61 FLRA 146 (2005).

The Ninth Circuit denied the agency’s petition seeking review of an Authority decision and order on remand finding that the agency committed ULPs when it failed to comply with an arbitrator’s award. The award required the agency to compensate employees for the increase in their commute times to temporary duty assignments. 

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 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 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, 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.  

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.

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).

American Federation of Government Employees, Council 147, AFL-CIO v. FLRA, 204 F.3d 1272 (9th Cir. 2000), reviewing 54 FLRA 444 (1998).

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).

Association of Civilian Technicians, Silver Baron Chapter, et al. v. FLRA, 200 F.3d 590 (9th Cir. 2000), reviewing 54 FLRA 595 (1998).

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.

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.

Eisinger v. FLRA, 218 F.3d 1097 (9th Cir. 2000), reviewing 54 FLRA 562 (1998).

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.