Number 137                    September 2000

COURT DECISIONS  |   FLRA   |   MSPB

Samuel M. Rizzitelli v. Federal Labor Relations Authority, Docket No. 00-4011 (2nd Cir. May 17, 2000).

The 2nd Circuit held that it has no subject matter jurisdiction over an individual's petition to review a decision by the Authority's General Counsel to not issue an unfair labor practice complaint involving the duty of fair representation. The court noted that "[i]t was the General Counsel, . . . not the Authority, that made the final decision not to issue a complaint on petitioner's unfair labor practice charge. There is thus no 'final order of the Authority' . . . before us[.]"

Petitioner had filed a ULP charge with FLRA's Boston Office, claiming that the union breached its duty of fair representation in connection with two grievances he had filed while employed as a corrections officer with the Federal prison in Danbury, Connecticut. After investigating the matter, FLRA's Regional Director refused to issue a complaint because (1) the charge was untimely (it was filed more than 6 months after the alleged breach), and (2) the charge was without merit as the evidence didn't show that the union treated the petitioner arbitrarily or differently from similarly situated employees that the union represented. When the Authority's General Counsel denied the petitioner's appeal of the Regional Director's decision, the petitioner sought court review.

The court dismissed the petition, holding that it was without jurisdiction to review the General Counsel's decision.

In connection with charges of unfair labor practice, the Authority is empowered to resolve complaints . . . and issue appropriate remedial orders. . . . It is not, however, empowered to decide whether to issue an unfair labor practice complaint. . . . That power is vested exclusively in the Authority's General Counsel . . . and the Authority has no power to review the General Counsel's decision, either. . . .

It was the General Counsel, therefore, not the Authority, that made the final decision not to issue a complaint on petitioner's unfair labor practice charge. There is thus no "final order of the Authority," 5 U.S.C. 7123(a), before us, and we lack subject matter jurisdiction over the instant petition.

In a footnote the court went on to note that the legislative history of the Federal Service Labor-Management Relations Act indicated that FLRA was not to exercise any authority over the General Counsel in investigating and prosecuting ULPs, "just as the National Labor Relations Board does not exercise such control over its General Counsel." And, in this connection, the 2nd Circuit had held that the NLRB's General Counsel "has unreviewable discretion to refuse to institute an unfair labor practice complaint." Peltzman v. Central Gulf Lines, Inc., 497 F.2d 332, 333 n.1 (2nd Cir. 1974).