Solicitor Briefs

The Tenth Circuit denied the union's petition for review.  The union sought review of an Authority order dismissing the union's petition for review of a negotiability issue for procedural reasons. 

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). 

The union seeks 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.

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.

The union seeks review of an Authority ULP decision finding that the agency did not repudiate certain contract provisions relating to drug testing. 

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.

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.

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 nor approved by the Solicitor General. The court left pending the Authority's cross-application for enforcement. 

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.   

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 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.

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)).

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.

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). 

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.

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, 527 U.S. 229 (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 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). 

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

The union seeks review of an Authority decision denying the union's application for review of a Regional Director determination that held, among others things, that the bargaining unit's Agriculture Specialists are not professional employees within the meaning of the Statute. The union has also moved, both before the Authority and the court, for a stay of the Authority's decision pending the court's review.

The D.C. Circuit granted the union's petition for review in part and denied the petition in part of an Authority decision dismissing ULP charges against the agency for refusing to bargain over patient parking spaces at the agency.

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.

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.

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. 

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. 

The union seeks review of an Authority decision granting agency exceptions to an arbitrator's award ruling that the agency violated the Statute when it refused to bargain with the union over certain portions of the union's leave-swapping proposal. 

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.  

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. 

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.   57 FLRA 185 (2001)

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 Lagood morbor 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.

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 Authority found a ULP for an agency's failure to provide the union with notice and an opportunity to represent bargaining unit employees at a formal discussion concerning the investigation of formal EEO complaints. The agency's exceptions to the ALJ's recommended decision were rejected as untimely filed.

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.