Fifth Circuit
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.
Major General James H. Lipscomb, III, et al. v. FLRA, 333 F.3d 611 (5th Cir. 2003), reviewing 200 F. Supp 2d 650 (S.D. Miss. 2001).
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.
Dep't of Justice, Immigration and Naturalization Service v. FLRA, 995 F.2d 46 (5th Cir. 1993), reviewing 44 FLRA 1065 (1992).
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.
Dep't of Justice, Immigration and Naturalization Service, Border Patrol v. FLRA, 991 F.2d 285 (5th Cir. 1993), reviewing 43 FLRA 697 (1991).
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).
U.S. Department of Justice, Immigration and Naturalization Service v. FLRA, 975 F.2d 218 (5th Cir. 1992), reviewing 40 FLRA 521 (1991).
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).
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.
Southern District of Mississippi - Jackson Division
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.