Number 136                    July 2000

COURT DECISIONS  |   FLRA   |   MSPB

Jeffrey W. Eisinger v. Federal Labor Relations Authority, No. 98-70766 (9th Cir. July 17, 2000).

The 9th Circuit, holding that it has jurisdiction to review a petition filed under 5 USC 7111, found that 5 CFR 2422.2, which denies individuals standing to file clarification-of-unit petitions under 5 USC 7111(b)(2), is an invalid regulation because inconsistent with the express language of the LMR statute.

Mr. Eisinger was employed at the Fresno District Office of the Small Business Administration (SBA), which was part of a nationwide consolidated unit of SBA employees. When he was transferred to an SBA servicing center he filed a petition with FLRA's regional office, claiming that the employees at the servicing center, particularly its professional employees, were not subject to the master agreement that applied to the consolidated unit.

FLRA's Regional Director, treating Eisinger's petition as a unit clarification petition, dismissed his petition, noting that 5 CFR 2422.2(c) provides that only an agency or a labor organization may file such a petition. When Eisinger filed an application for review, in 54 FLRA No. 58 the Authority, in a 2 to 1 decision (Member Cabaniss dissenting), concurred with the Regional Director's decision.

When Eisinger appealed this decision to the 9th Circuit, the Authority claimed, among other things, that the court didn't have jurisdiction under 5 USC 7123 to review a petition filed under 5 USC 7111. The court, relying on the plain language of the statute, disagreed. With two exceptions, 5 USC 7123 provides that all final orders of the Authority are subject to judicial review. Although 7123(a)(1) and (2) exclude FLRA orders under 7122 (dealing with exceptions to arbitration awards) and 7112 (dealing with appropriate unit determinations), respectively, the unit clarification petition filed by Eisinger was filed under 7111(b). Thus the court had jurisdiction to review FLRA's decision on Eisinger's petition. In reaching its conclusion, the 9th Circuit disagreed with the 5th Circuit's decision in Department of Justice v. Federal Labor Relations Authority, 727 F.2d 481 (1984). In that decision, the 5th Circuit, relying mainly on the statute's legislative history and the court's established practice in dealing with NLRB decisions in representation proceedings in the private sector, concluded that it had no jurisdiction to review FLRA's decision, under 5 USC 7111, to set aside an election and order another election.

Turning to the merits of the dispute, the court, in agreement with Member Cabaniss's dissent, said the following:

In this case, the statutory language permitting "any person" to file a 7111 petition is neither silent nor ambiguous. . . . Section 7103(a)(1), however, goes one step further by explicitly defining a "person" as an "individual, labor organization, or agency.". . . We conclude that the intent of Congress was unambiguous. Congress has permitted "any person" to file a 7111 petition and specifically defined a "person" as an "individual." Given the clarity of Congress's intent in this case, we will not inquire beyond the first step of the Chevron test. Therefore, we will not address the policy and practical considerations advanced by the FLRA.

The court accordingly found FLRA's regulation denying individuals standing to file unit clarification petitions invalid.

It emphasized, however, that its decision "does not disturb the FLRA's unreviewable authority to clarify and make appropriate unit determinations."

Although the apparent split between the 9th and 5th Circuits would be grounds for seeking Supreme Court review, we doubt that FLRA will seek certiorari at this time. We suspect that it will instead treat this decision as the "law of the case" and wait and see whether this decision results in a substantial increase in its workload. If so, it may litigate the matter in some other circuits--as it did in the home address controversy a few years ago--before seeking Supreme Court review. Or it may prefer to seek a legislative fix.