ORAL ARGUMENT SCHEDULED FOR OCTOBER 17, 1997
No. 96-1277
IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
_______________________________
PATENT OFFICE PROFESSIONAL ASSOCIATION,
Petitioner
v.
FEDERAL LABOR RELATIONS AUTHORITY,
Respondent
_______________________________
ON PETITION FOR REVIEW OF A DETERMINATION BY
THE GENERAL COUNSEL OF THE
FEDERAL LABOR RELATIONS AUTHORITY
NOT TO ISSUE AN UNFAIR LABOR PRACTICE COMPLAINT
BRIEF FOR THE GENERAL COUNSEL OF
THE FEDERAL LABOR RELATIONS AUTHORITY
DAVID M. SMITH
Solicitor
WILLIAM R. TOBEY
Attorney
JAMES F. BLANDFORD
Attorney
Federal Labor Relations Authority
607 14th Street, N.W.
Washington, D.C. 20424
(202) 482-6620
ORAL ARGUMENT SCHEDULED FOR OCTOBER 17, 1997
CERTIFICATE AS TO PARTIES, RULINGS AND RELATED CASES
A. Parties and amici
Appearing below in the administrative proceeding
before the Federal Labor Relations Authority's General Counsel were the U.S.
Patent and Trademark Office and the Patent Office Professional Association.
The Patent Office Professional Association is the petitioner in this court
proceeding; the Authority is the respondent.
B. Rulings under review
The ruling under review in this case is a determination of the
Authority's General Counsel not to issue an unfair labor practice
complaint in U.S. Patent & Trademark Office, Case No. WA-CA-50352 on
June 13, 1996.
C. Related Cases
This case has not previously been before this Court or any other court.
Counsel for the Authority is unaware of any cases pending before this
Court which are related to this case within the meaning of Local Rule
28(a)(1)(C).
TABLE OF CONTENTS
STATEMENT OF JURISDICTION 1
STATEMENT OF THE ISSUES 2
STATEMENT OF THE CASE 2
I. Nature of the case 2
II. Statement of The Facts 3
A. Background 3
1. Negotiations in the early 1980s and the first
arbitration decision 4
2. The 1988 negotiations, the second arbitration
award, and related proceedings 5
B. The current dispute 7
1. The facts 7
2. The General Counsel's determination not to
issue an unfair labor practice complaint 7
STANDARD OF REVIEW 8
SUMMARY OF ARGUMENT 9
ARGUMENT 11
I. THIS COURT IS WITHOUT SUBJECT MATTER JURISDICTION
UNDER SECTION 7123 OF THE STATUTE TO REVIEW THE
GENERAL COUNSEL'S DETERMINATION NOT TO ISSUE A ULP
COMPLAINT IN THE INSTANT CASE 11
A. This Court's decision in Turgeon, as well as
similar decisions by other courts, show that
Congress intended that determinations of the
General Counsel not to issue ULP complaints are unreviewable 12
B. The language and legislative history of the
Statute support application of the rule of
nonreviewability of General Counsel decisions
not to issue a complaint in this case 13
1. Language of the Statute 13
2. Legislative history 14
C. The similarity between the Statute and the NLRA,
and the cases interpreting both statutes, further
support the FLRA General Counsel's final,
unreviewable discretion not to issue a ULP
complaint in this case 15
D. Congress' intent to prohibit review of General
Counsel ULP determinations is purposeful and
unqualified 17
E. Nothing in this case warrants an exception to the
rule in established in Turgeon 18
1. Congress intended to prohibit judicial
review of General Counsel prosecutorial
determinations, not merely create a rebuttable
presumption against judicial review 19
2. POPA fails to establish that the General
Counsel consciously and expressly adopted a
general policy so extreme as to amount to an
abdication of statutory responsibility 22
II. ASSUMING, FOR THE SAKE OF ARGUMENT, THAT THE COURT
HAS JURISDICTION, THE GENERAL COUNSEL PROPERLY
DETERMINED THAT THERE WAS INSUFFICIENT EVIDENCE OF A
VIOLATION OF THE STATUTE TO WARRANT THE ISSUANCE OF A
ULP COMPLAINT 26
A. The General Counsel reasonably concluded that
PTO was not obligated to implement POPA's proposed
Article 19 because no agreement had been reached 26
B. POPA's other contentions are without merit 28
1. Silence by PTO does not create a
"constructive" agreement with respect
to Article 19 28
2. This Court did not order the parties to
implement a collective bargaining agreement 29
3. The prospect of additional bargaining does
not justify reversing the General Counsel's
determination 30
CONCLUSION 31
ADDENDUM
Relevant portions of the Federal Service Labor-Management
Relations Statute, 5 U.S.C. §§ 7101-7135 (1994) and
other pertinent regulation A-1
TABLE OF AUTHORITIES
American Fed'n of Gov't Employees, Local 1749 v. FLRA,
842 F.2d 102 (5th Cir. 1988) 12, 13, 16
Associated Builders and Contractors, Inc. v. Irving,
610 F.2d 1221 (4th Cir. 1979), cert. denied, 446 U.S. 965
(1980) 16
Baker v. IATSE, 691 F.2d 1291 (9th Cir. 1982) 16
*Beverly Health and Rehab. Service v. Feinstein,
103 F.3d 151 (D.C. Cir. 1996), petition for cert. filed,
65 U.S.L.W. 3826 (U.S. June 2, 1997) passim
Bishop v. NLRB, 502 F.2d 1024 (5th Cir. 1974) 25
Columbia Power Trades Council v. United States Department
of Energy, 671 F.2d 325 (9th Cir. 1982) 14
Dunn v. Retail Clerks International Assn, 307 F.2d 285
(6th Cir. 1962) 16
Griffith v. FLRA, 842 F.2d 487 (D.C. Cir. 1988) 22, 25
*Heckler v. Chaney, 470 U.S. 821 (1985) passim
International Union, United Automobile, Aerospace &
Agricultural Implement Workers v. Brock, 783 F.2d 237
(D.C. Cir. 1986) 6, 22, 23
Leedom v. Kyne, 358 U.S. 184 (1958) 22
Martinez v. Smith, 768 F.2d 479 (1st Cir. 1985) 12
Mayer v. Ordman, 391 F.2d 889 (6th Cir.), cert. denied,
393 U.S. 925 (1968) 16
Montana Air Chapter No. 29, Association of Civilian
Technicians, Inc. v. FLRA, 632 F. Supp. 643
(D. Mont. 1986) 20
Montana Air Chapter No. 29, Association of Civilian
Technicians, Inc. v. FLRA, 898 F.2d 753
(9th Cir. 1990) 19, 20, 22, 23
NLRB v. Sears, Roebuck & Co., 421 U.S. 132 (1975) 16
*NLRB v. United Food & Commercial Workers Union,
484 U.S. 112 (1987) 13, 17, 21
*Patent Office Professional Association v. FLRA,
26 F.3d 1148 (D.C. Cir. 1994) 6, 26, 29
Teamsters Local Union No. 639 v. NLRB, 924 F.2d 1078
(D.C. Cir. 1991) 8
*Turgeon v. FLRA, 677 F.2d 937 (D.C. Cir. 1982) passim
U.S. Department of Justice v. FLRA, 981 F.2d 1339
(D.C. Cir. 1993) 22
Vaca v. Sipes, 386 U.S. 171 (1967) 13, 15
Warren v. Local 1759, AFGE, 764 F.2d 1395 (11th Cir.),
cert. denied, 474 U.S. 1006 (1985) 13
DECISIONS OF THE FEDERAL LABOR RELATIONS AUTHORITY
Department of the Interior, Nat'l Park Serv., Colonial
Nat'l Historical Park, Yorktown, Virginia, 20 FLRA 537
(1985), aff'd sub nom. National Ass'n of Gov't Employees,
Local R4-68 v. FLRA, 802 F.2d 1484 (4th Cir. 1986) 27
Interpretation and Guidance, 15 FLRA 564 (1984),
affd sub nom. American Federation of Government
Employees, AFL-CIO v. FLRA, 778 F.2d 850
(D.C. Cir. 1985) 6
National Treasury Employees Union, Chapter 251 and U.S.
Department of the Treasury, IRS, Washington, D.C.,
40 FLRA 985 (1991) 27, 28, 30
Patent Office Professional Association and Patent and
Trademark Office, Department of Commerce, 25 FLRA 384
(1987), aff'd, 868 F.2d 458 (D.C. Cir. 1988) 4, 5
Patent Office Professional Association and Patent and
Trademark Office, Department of Commerce, 29 FLRA 1389
(1987), aff'd, 873 F.2d 1485 (D.C. Cir. 1989) 5
Patent Office Professional Association and U.S. Department
of Commerce, Patent and Trademark Office, 41 FLRA 795
(1991) 26
*Patent Office Professional Association and United States
Department of Commerce, Patent and Trademark Office,
Washington, D.C., 47 FLRA 10 (1993), aff'd in part and
rev'd in part, 26 F.3d 1148 (D.C. Cir. 1994) passim
U.S. Dep't of the Navy, Portsmouth Naval Shipyard,
Portsmouth, NH, 44 FLRA 205 (1992) 28
FEDERAL STATUTES
Federal Service Labor-Management Relations Statute,
5 U.S.C. §§ 7101-7135 (1994) 1
5 U.S.C. § 7104(f)(2)(A) 2
5 U.S.C. § 7104(f)(2)(B) 2
5 U.S.C. § 7105(a)(2)(E) 6
5 U.S.C. § 7105(a)(2)(G) 13
5 U.S.C. § 7114(b)(5) 28
5 U.S.C. § 7114(c) 6, 26, 27
5 U.S.C. § 7114(c)(2) 5
5 U.S.C. § 7116(a)(1) 2, 7
5 U.S.C. § 7116(a)(2) 2, 7
5 U.S.C. § 7116(a)(5) 2, 7
5 U.S.C. § 7116(a)(6) 2, 7
5 U.S.C. § 7116(a)(8) 2, 7
5 U.S.C. § 7117 6
5 U.S.C. § 7118(a)(6)-(8) 13
5 U.S.C. § 7119 4
5 U.S.C. § 7122 22
* 5 U.S.C. § 7123 passim
* 5 U.S.C. § 7123(a) 14
Administrative Procedure Act, 5 U.S.C. §§ 551-59 11, 17
5 U.S.C. §§ 701-706 11, 17
5 U.S.C. § 701(a)(1) 17, 21
5 U.S.C. § 701(a)(2) 21
5 U.S.C. § 704 17
29 U.S.C. § 151 15
29 U.S.C. § 153(d) 15
29 U.S.C. § 160(e) 15
29 U.S.C. § 160(f) 15
CODE OF FEDERAL REGULATIONS
5 C.F.R. § 2423.10(c) 8
5 C.F.R. Part 2424 6
LEGISLATIVE HISTORY
H.R. Rep. No. 95-1403, 95th Cong., 2d Sess. 41 (1978) 14
S. Rep. No. 969, 95th Cong., 2d Sess. 102, reprinted in
1978 U.S.C.C.A.N. 2723 14
*Cases or authorities chiefly relied upon are marked by asterisks.
GLOSSARY
AFGE American Fed'n of Gov't Employees, Local 1749
Local 1749 v. FLRA, 842 F.2d 102 (5th Cir. 1988)
APA Administrative Procedure Act
Beverly Health Beverly Health and Rehab. Serv. V. Feinstein,
103 F.3d 151 (D.C. Cir. 1996)
Chaney Heckler v. Chaney, 470 U.S. 821 (1985)
FLRA Federal Labor Relations Authority
Food & NLRB v. United Food & Commercial Workers Union,
Com'l Wkrs 484 U.S. 112 (1987)
Montana Air Montana Air Chapter No. 29, Association of
Civilian Technicians v. FLRA, 898 F.2d 753 (9th Cir. 1990
NLRA National Labor Relations Act
NLRB National Labor Relations Board
POPA Patent Office Professional Association and United
States Department of Commerce, Patent and Trademark Office,
Washington, D.C., 47 FLRA 10 (1993)
POPA v. FLRA Patent Office Professional Ass'n v. FLRA,
26 F3d 1148 (D.C. Cir. 1994)
PTO Patent and Trademark Office
Statute Federal Service Labor-Management Relations Statute,
5 U.S.C. §§7101-7135 (1996)
Turgeon Turgeon v. FLRA, 677 F.2d 937 (D.C. Cir. 1982)
ULP unfair labor practice
ORAL ARGUMENT SCHEDULED FOR OCTOBER 17, 1997
IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
No. 96-1277
_______________________________
PATENT OFFICE PROFESSIONAL ASSOCIATION,
Petitioner
v.
FEDERAL LABOR RELATIONS AUTHORITY,
Respondent
_______________________________
ON PETITION FOR REVIEW OF A DETERMINATION BY
THE GENERAL COUNSEL OF THE
FEDERAL LABOR RELATIONS AUTHORITY
NOT TO ISSUE AN UNFAIR LABOR PRACTICE COMPLAINT
BRIEF FOR THE GENERAL COUNSEL OF
THE FEDERAL LABOR RELATIONS AUTHORITY
STATEMENT OF JURISDICTION
The administrative action that is the subject of the petition is a
determination by the General Counsel of the Federal Labor Relations
Authority ("FLRA") not to issue an unfair labor practice ("ULP") complaint
under the provisions of the Federal Service Labor-Management Relations
Statute, 5 U.S.C. §§ 7101-7135 (1994) ("Statute").[1] The General Counsel
issued his determination in U.S. Patent and Trademark Office, No. WA-
CA-50352 on June 13, 1996.
This Court lacks subject matter jurisdiction under section 7123 of Statute
to review the General Counsel's determination. See, e.g., Turgeon v.
FLRA, 677 F.2d 937, 940 (D.C. Cir. 1982) ("Turgeon").
STATEMENT OF THE ISSUES
1. Whether this Court has subject matter jurisdiction under section 7123 of
the Statute to review the General Counsel's determination not to issue a ULP
complaint in the instant case.
2. Assuming, for the sake of argument, that the Court has jurisdiction,
whether the General Counsel properly determined that there was insufficient
evidence of a violation of the Statute to warrant the issuance of a ULP
complaint.
STATEMENT OF THE CASE
I. Nature of the Case
This case arises from the determination of the FLRA's General Counsel,
pursuant to his authority under section 7104(f)(2)(A) and (B) of the
Statute, not to issue a ULP complaint based on a charge filed by the Patent
Office Professional Association ("POPA").
POPA charged that the United States Patent and Trademark Office (PTO) had
violated section 7116(a)(1), (2), (5), (6), and (8) of the Statute by
failing to execute and implement portions of a collective bargaining
agreement imposed by an interest arbitrator. After investigation of POPA's
charge, the FLRA's Washington Regional Director concluded that issuance of a
complaint was not warranted. The FLRA's General Counsel subsequently denied
POPA's appeal of the Regional Director's determination. POPA then filed the
instant petition in this Court.
The FLRA moved to dismiss the petition for review on the ground that the
Court lacks subject matter jurisdiction under section 7123 of the Statute.
POPA opposed the FLRA's motion and the FLRA replied. By order filed on
March 31, 1997, the Court referred the motion to dismiss to the merits panel
to which the petition for review was assigned. The Court's order also
directed the parties "to include in their briefs the arguments raised in the
motion to dismiss[.]" (Court's Order filed March 31, 1997).
II. Statement of The Facts
A. Background
The case arises from events that date back to 1981, concerning negotiations
between the POPA and PTO over PTO's performance appraisal plan. Aspects of
these protracted negotiations have previously been the subject of
proceedings before the FLRA, the Federal Service Impasses Panel ("Panel"),
an interest arbitrator, and this Court. To assist the Court in
understanding the context in which the instant case arises, a brief history
of these events is provided.[2]
1. Negotiations in the early 1980s and the first arbitration decision
After beginning negotiations on performance plans in 1981, POPA requested
the assistance of the Panel, but the Panel took no action and ordered the
parties to resume negotiations. (JA at 273).[3]
The parties resumed negotiations on the performance appraisal system during
1984 and 1985, as part of their negotiations over a basic collective
bargaining agreement (CBA). (JA at 257). They continued to be unable to
reach agreement and again sought the assistance of the Panel. (JA at 273).
Pursuant to the Panel's order, the parties submitted their bargaining
impasse to an interest arbitrator. (id.). The arbitrator issued an award
on the CBA in June 1986, but declined to include performance appraisal
issues (now Article 19 of the CBA) in his award. (JA at 257-58). Instead,
he ordered further negotiations on Article 19 and retained jurisdiction to
resolve any resulting impasse.[4] (JA at 258).
2. The 1988 negotiations, the second arbitration award, and related
proceedings
In January 1988, POPA submitted to PTO a revised package of performance
appraisal proposals. (JA at 253). This package included new proposals that
the parties had not discussed and that had not been before the arbitrator in
the previous impasse proceedings. (id.). Once again the parties were
unable to reach agreement, and proceedings before the arbitrator resumed.
(JA at 273).
As a threshold issue before the arbitrator, PTO objected, on jurisdictional
grounds, to his consideration of those proposals presented for the first
time in January 1988. (JA at 273). The arbitrator overruled PTO's
objections and held hearings on the continued impasse. (id.).[5]
Subsequently, in November 1989 the arbitrator issued his award encompassing
the provisions to be adopted as Article 19, some of which related to POPA's
new 1988 proposals. (id.). Pursuant to section 7114(c)(2) of the Statute,
PTO disapproved the imposed Article 19, and POPA appealed the disapproval to
the FLRA's members (Authority) under Part 2424 of the FLRA's rules (5 C.F.R.
Part 2424 (1997)). (id.).[6]
The Authority, acting pursuant to 5 U.S.C. § 7105(a)(2)(E), declined to
consider PTO's jurisdictional arguments and proceeded to rule on the
disputed provisions' negotiability. POPA, 47 FLRA at 17-18. With respect
to negotiability, the Authority found some provisions within PTO's
obligation to bargain, but upheld PTO's disapproval with respect to others.
POPA, 47 FLRA at 19-94.
Both POPA and PTO petitioned this Court for review of the Authority's
decision. As relevant here, the Court found that the arbitrator did not
have jurisdiction over the January 1988 proposals, and held that PTO was not
contractually bound by those proposals. Patent Office Professional Ass'n v.
FLRA, 26 F.3d 1148, 1153-54 (D.C. Cir. 1994) (POPA v. FLRA).[7] With
respect to other proposals before it, some of which the Authority had found
negotiable and some it had not, the Court found that they were all outside
PTO's obligation to bargain. 26 F.3d at 1154-57.
B. The current dispute
1. The facts
In July 1994, following the Court's decision, the parties met once more in
an attempt to resolve the outstanding issues. (JA at 273). After failing
to reach an agreement, POPA requested that PTO adopt as Article 19 those
provisions ordered by the arbitrator in 1989, but deleting those provisions
found nonnegotiable by the Authority and the Court and those the Court found
beyond the arbitrator's jurisdiction. (id.). When PTO did not formally
respond to POPA's request, POPA resorted for the first time to the Statute's
ULP procedures, filing a charge with the FLRA's Washington, D.C. Regional
Office alleging that PTO violated section 7116(a)(1), (2), (5), (6), and (8)
of the Statute by failing to "sign and implement an agreement on performance
appraisal based upon a request where all sections of the proposed agreement
have been awarded as a result of impasse proceedings and court appeals with
nothing remaining for further impasse." (JA at 10).
2. The General Counsel's determination not to issue an unfair labor
practice complaint
After investigating POPA's charge, the FLRA's Regional Office concluded that
the issuance of a complaint was not warranted. (JA at 252). The Regional
Director first found that PTO's duty to implement Article 19 was "contingent
on the existence of a [CBA]." (JA at 254). Finding that the parties did
not have an effective CBA into which to incorporate POPA's suggested Article
19, the Regional Director concluded that PTO had no obligation to implement
Article 19. (JA at 255-56). Accordingly, he refused to issue a ULP
complaint. (JA at 256).
Pursuant to 5 C.F.R. § 2423.10(c), POPA appealed the Regional Director's
determination to the FLRA's General Counsel. (JA at 257). The General
Counsel, through his Deputy General Counsel, denied the appeal. (JA at
273). The General Counsel found that there was "no meaningful basis . . .
for concluding that the parties [had] reached an agreement on Article 19"
such as would obligate PTO to implement its provisions. (JA at 275).[8]
STANDARD OF REVIEW
The principal question in this case is whether the Court has subject matter
jurisdiction, a matter to be decided by the Court in the first instance. In
the event the Court reaches the merits of the General Counsel's
determination not to issue a ULP complaint, petitioner POPA concedes that
such a determination is left to the General Counsel's discretion.
Accordingly, if any review is permitted, it should be for abuse of that
discretion. See Teamsters Local Union No. 639 v. NLRB, 924 F.2d 1078, 1085
(D.C. Cir. 1991) (NLRB enjoys "broad discretion" with respect to remedies
and reviewing court will disturb choice of remedy "only when it amounts to
an abuse of discretion"); see also Heckler v. Chaney, 470 U.S. 821, 840-41
(1985) (Chaney) (Marshall, J., concurring) (agency enforcement decisions
warrant deference when agency has not abused enforcement discretion).
SUMMARY OF ARGUMENT
1. In Turgeon, this Court held unequivocally that determinations of the FLRA's
General Counsel concerning the issuance of ULP complaints are not subject to
judicial review. That decision, as well as decisions of other courts reaching
the same result, accurately reflect Congress' clear intentions on this regard.
Section 7123 of the Statute provides for judicial review of "final order[s]
of the Authority." However, under the Statute the Authority may issue
orders in ULP cases only upon issuance of a complaint by the General
Counsel. Accordingly, the General Counsel's determination regarding whether
to issue a complaint is a not a "final order" of the Authority, subject to
judicial review under section 7123. There are no other provisions for
judicial review in the Statute. Further, the Legislative History of the
Statute reflects Congress' intention to insulate General Counsel complaint
determinations from judicial review.
All courts that have addressed the judicial review question, including this
one, have recognized the analogy between the functions and authority of the
FLRA's General Counsel, with those of the National Labor Relations Board's
General Counsel, and have applied case law developed under the National
Labor Relations Act. As this Court recently concluded, Congress intended to
"prevent courts from interfering with the [NLRB's] General Counsel's
exercise of his statutory powers." Beverly Health and Rehab. Serv. v.
Feinstein, 103 F.3d 151, 154 (D.C. Cir. 1996), petition for cert. filed, 65
U.S.L.W. 3826 (U.S. June 2, 1997) (Beverly Health). Congress' intent was
the same with respect to the FLRA's General Counsel.
2. Contrary to POPA's contentions, nothing in this case warrants an exception
to the well-established rule prohibiting judicial review. First, the exceptions
to the non-reviewability of agency "enforcement decisions" alleged by POPA to be
applicable to General Counsel ULP complaint determinations have been developed
under statutory schemes which lack the purposeful preclusion of judicial review
present here. Accordingly, these exceptions should not be applied to General
Counsel complaint determinations.
Second, even if General Counsel complaint determinations are only
"presumptively unreviewable" and therefore subject to exceptions, POPA has
not demonstrated that any established exception is applicable in this case.
POPA contends (Br. at 22-23) that the General Counsel's determination in
this case is reviewable because he has "'consciously and expressly adopted a
general policy' that is so extreme as to amount to an abdication of its
statutory responsibilities." Yet POPA fails to identify either the "general
policy" announced in the General Counsel's determination or how he has
"abdicated" a specific statutory responsibility.
3. Finally, even assuming judicial review is available in this case, POPA has
not shown that the General Counsel abused his discretion in declining to issue a
ULP complaint based on POPA's charge. POPA alleged that PTO violated the
Statute by failing to implement certain collective bargaining provisions as
proposed by POPA. The General Counsel, however, determined that absent evidence
of PTO's agreement to implement POPA's proposal, PTO had no obligation to do so.
The General Counsel's determination was consistent with applicable precedent and
he reasonably found no evidence of an agreement between the parties. Further,
POPA has not shown that the General Counsel's determination is otherwise
inconsistent with the Statute.
ARGUMENT
I. THIS COURT IS WITHOUT SUBJECT MATTER JURISDICTION UNDER SECTION 7123 OF THE
STATUTE TO REVIEW THE GENERAL COUNSEL'S DETERMINATION NOT TO ISSUE A ULP
COMPLAINT IN THE INSTANT CASE
This Circuit, along with virtually all others, has concluded that it lacks
subject matter jurisdiction to review General Counsel ULP complaint
determinations. These decisions conform with both the will of Congress and
long-standing interpretations concerning the General Counsel's analogous
authority under the National Labor Relations Act (NLRA). Unlike review of
agency discretionary determinations under certain sections of the
Administrative Procedure Act (APA), 5 U.S.C. §§ 551-59, 701-706, Congress
has clearly expressed its intent to preclude judicial review of General
Counsel complaint determinations. Nothing about the General Counsel's
determinations in this case warrant an exception to this well-established
rule.
A. This Court's decision in Turgeon, as well as similar decisions by other
courts, show that Congress intended that determinations of the General
Counsel not to issue ULP complaints are unreviewable
This Court has previously ruled unequivocally that it is without subject
matter jurisdiction to review a decision by the FLRA's General Counsel not
to issue a ULP complaint. Turgeon, 677 F.2d at 940; accord Martinez v.
Smith, 768 F.2d 479, 480 (1st Cir. 1985); American Fed'n of Gov't Employees,
Local 1749 v. FLRA, 842 F.2d 102, 105 (5th Cir. 1988) (per curiam) ("AFGE
Local 1749"). In Turgeon an employee had charged that his employing agency,
the Environmental Protection Agency, had committed ULP violations. As here,
the FLRA's General Counsel declined to issue a complaint based on the
evidence presented.
This Court held in Turgeon that Congress intended that there be no review of
the General Counsel's refusal to issue an unfair labor practice complaint
either by the Authority or in the courts. The Court stated:
We . . . conclude that Congress clearly intended the General Counsel of the
Federal Labor Relations Authority to have unreviewable discretion to decline to
issue unfair labor practice complaints. Since there is thus no "final order of
the Authority" subject to judicial review under section 7123 of the [Statute],
the petition for review herein is dismissed for lack of jurisdiction.
677 F.2d at 940.
In reaching this result, this Court specifically recognized the analogy
Congress intended in the Statute between the FLRA and its General Counsel,
on the one hand, and the National Labor Relations Board ("NLRB") and its
General Counsel on the other. 677 F.2d at 939; see also Warren v. Local
1759, AFGE, 764 F.2d 1395, 1397 (11th Cir.), cert. denied, 474 U.S. 1006
(1985); AFGE Local 1749, 842 F.2d at 104-05. It is well established that
determinations of the General Counsel of the NLRB not to issue ULP
complaints are not subject to judicial review. NLRB v. United Food &
Commercial Workers Union, 484 U.S. 112, 122 (1987) (Food & Com'l Wkrs); Vaca
v. Sipes, 386 U.S. 171, 182 (1967); Turgeon, 677 F.2d at 940; Beverly
Health, 103 F.3d at 154.
B. The language and legislative history of the Statute support application
of the rule of nonreviewability of General Counsel decisions not to issue a
complaint in this case
Congress intended the investigation of unfair labor practice charges, and
the issuance and prosecution of unfair labor practice complaints, to be
within the unreviewable discretion of the FLRA's General Counsel. This is
confirmed by the language of the Statute, as well as its legislative
history.
1. Language of the Statute
Nothing in the language of the Statute permits any review of the General
Counsel's action concerning investigation or issuance of an unfair labor
practice complaint. More specifically, the Statute affords the Authority no
opportunity to review such a decision by the General Counsel. Rather, it is
only upon the issuance of a complaint that the Authority is empowered to
exercise its decision-making functions--that is, to conduct a hearing,
decide the merits of a complaint, and issue any appropriate remedial order
(5 U.S.C. §§ 7105(a)(2)(G) and 7118(a)(6)-(8)).
Further, the Statute provides for court review only of a "final order of the
Authority." 5 U.S.C. § 7123(a). There is no conceivable way that the
Authority could issue such an order when
the General Counsel has declined to issue an unfair labor practice complaint.
Consequently, the General Counsel's action challenged here is not a final order
of the Authority subject to court review within the meaning of the judicial
review provisions of section 7123(a) of the Statute. 5 U.S.C. § 7123(a). See
Turgeon, 677 F.2d at 940. Thus, the Statute makes no provision whatsoever for
review of the General Counsel's decisions regarding investigation of ULP charges
or the issuance of ULP complaints, either administratively or judicially. See
Columbia Power Trades Council v. United States Dep't of Energy, 671 F.2d 325,
329 (9th Cir. 1982).
2. Legislative history
The Statute's legislative history also amply supports dismissal of the
petition for review. As this Court recognized in Turgeon, both the House
and Senate independently resolved that decisions of the General Counsel not
to issue unfair labor practice complaints would be unreviewable, and that
intent was reflected in the Statute as enacted. See Turgeon, 677 F.2d at
939 (quoting H.R. Rep. No. 95-1403, 95th Cong., 2d Sess. 41, 52 (1978) and
S. Rep. No. 969, 95th Cong., 2d Sess. 102, reprinted in 1978 U.S.C.C.A.N.
2723, 2824).
C. The similarity between the Statute and the NLRA, and the cases
interpreting both statutes, further support the FLRA General Counsel's
final, unreviewable discretion not to issue a ULP complaint in this case
The Statute's legislative history establishes, as this Court recognized in
Turgeon, that the role and functions of the General Counsel and the FLRA,
including the right of court review under the Statute, were closely
patterned after the role and functions of the General Counsel and Members of
the NLRB and the right of court review under the NLRA.[9] Turgeon, 677 F.2d
at 940, and cases cited therein. Accordingly, case law developed under the
NLRA with respect to judicial review of General Counsel determinations is
wholly applicable to similar cases arising under the Statute.
As noted earlier, such precedent establishes beyond doubt that the General
Counsel of the NLRB may exercise his or her prosecutorial discretion in
determining whether to issue a ULP complaint, without having that
determination subjected to judicial review. As the Supreme Court has
stated:
Congress has delegated to the Office of General Counsel on "behalf of the Board"
the unreviewable authority to determine whether a complaint shall be filed. 29
U.S.C. § 153(d); Vaca v. Sipes, 386 U.S. 171, 182 (1967). In those cases in
which he decides that a complaint shall issue, the General Counsel becomes an
advocate before the Board in support of the complaint. In those cases in which
he decides not to issue a complaint, no proceeding before the Board occurs at
all. The practical effect of this administrative scheme is that a party
believing himself the victim of an unfair labor practice can obtain neither
adjudication nor remedy under the labor statute without first persuading the
Office of General Counsel that his claim is sufficiently meritorious to warrant
Board consideration.
NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 138-39 (1975). As one court has
observed, "[t]he numerous attempts to secure judicial review of the [NLRB]
General Counsel's decision not to issue unfair labor practice complaints have
....all ended in failure." Baker v. IATSE, 691 F.2d 1291, 1296 (9th Cir. 1982).
Indeed, the Sixth Circuit has referred to such an attempt as "frivolous and
entirely without merit." Mayer v. Ordman, 391 F.2d 889, 890 (6th Cir.), cert.
denied, 393 U.S. 925 (1968). Analogously, the FLRA's General Counsel possesses
the same unreviewable discretion in this case.
Pursuant to this analogy between the General Counsel of the FLRA and the
NLRB contemplated by Congress, the authority of the FLRA General Counsel may
therefore be likened to that of an "attorney general or other executive
officer of the government," responsible only to the President and Congress.
Associated Builders and Contractors, Inc. v. Irving, 610 F.2d 1221, 1224
(4th Cir. 1979), cert. denied, 446 U.S. 965 (1980); Dunn v. Retail Clerks
Int'l Ass'n, 307 F.2d 285, 288 (6th Cir. 1962). In fact, the role of the
FLRA's General Counsel as "prosecutor" has been recognized by this Court and
others. Turgeon, 677 F.2d at 939; see also AFGE, Local 1749, 842 F.2d at
105.
D. Congress' intent to prohibit review of General Counsel ULP
determinations is purposeful and unqualified
The discussion above demonstrates that in enacting both the Statute and the
NLRA, Congress clearly intended to preclude judicial review of General
Counsel determinations with respect to the issuance or nonissuance of ULP
complaints. With specific reference to the NLRA, the Supreme Court has
recognized the complete and unqualified nature of the preclusion of review.
Food and Com'l Wkrs., 484 U.S. at 128-31. Responding to contentions that
even if the NLRA precluded judicial review, review of General Counsel
determinations was available under the more general provisions of the APA, 5
U.S.C. §§ 551-59, 701-706, the Court held that since "Congress purposely
excluded [General Counsel] prosecutorial decisions from [judicial] review .
. ., it would be illogical in the extreme to hold that Congress did so only
to permit review under the APA." 484 U.S. at 131.[10] The Court noted that
under section 701(a)(1) of the APA, the act's review provisions do not apply
where "statutes preclude judicial review." 484 U.S. at 130. The Court
specifically found that judicial review of General Counsel determinations
are precluded by statute within the meaning of section 701(a)(1). Id.
In a recent case applying Food and Com'l Wkrs, this Court has again
recognized that under the NLRA, General Counsel determinations are
"insulated from judicial review." Beverly Health, 103 F.3d at 154. Finding
no suggestion that Congress "intended an exception to its preclusion of
judicial review over the complaint process in [the circumstances in that
case]," this Court concluded that "the NLRA's protection of prosecutorial
decisions is a direct manifestation of Congress' intent to prevent courts
from interfering with the General Counsel's exercise of his statutory
powers." Id. at 154.
Accordingly, it is clear from the statutory language, legislative history,
the similarity between the Statute and the NLRA, and the cases interpreting
both statutes, that Congress intended that the FLRA's General Counsel's
complaint determinations would not be subject to judicial review.
E. Nothing in this case warrants an exception to the rule in established in
Turgeon
POPA fails to acknowledge, much less attempt to distinguish, Turgeon, or
any other precedent under the Statute or the NLRA that establishes that
Congress intended to preclude review of General Counsel determinations not
to issue ULP complaints. Instead, POPA relies on cases arising under other
statutory schemes, e.g. Chaney, 470 U.S. 821, to argue that the General
Counsel's determinations not to issue complaints are only "presumptively"
unreviewable, and that established exceptions to that presumption are
present in this case. Specifically, POPA argues that this Court has
jurisdiction to review the General Counsel's determination because the
General Counsel's determination constituted a "[conscious and express
adoption of] a general policy that is so extreme as to amount to an
abdication of its statutory responsibilities." POPA brief at 22, quoting
from Chaney, 470 U.S. at 833 n.4.
POPA is mistaken. First, as demonstrated above, in enacting the Statute,
Congress purposefully intended to prohibit judicial review of General
Counsel prosecutorial determinations. POPA relies heavily on cases arising
under other statutory schemes where such a purposeful intent to preclude
review is absent. Second, even if exceptions to rules precluding judicial
review established in other contexts are applicable to General Counsel
determinations, the exception cited by POPA does not fit the facts of this
case.
1. Congress intended to prohibit judicial review of General Counsel
prosecutorial determinations, not merely create a rebuttable presumption
against judicial review
As demonstrated in sections A-D above, Congress purposefully and
unequivocally precluded judicial review of General Counsel complaint
determinations. Nonetheless, POPA, relying on the Ninth Circuit's decision
in Montana Air Chapter No. 29, Association of Civilian Technicians v. FLRA,
898 F.2d 753, 756 (9th Cir. 1990) ("Montana Air"), contends that there is
only a rebuttable presumption against judicial review. However, Montana Air
was wrongly decided and should not be adopted by this Court. The Ninth
Circuit mistakenly applied cases from administrative schemes which lack the
purposeful exclusion from judicial review found in the Statute. This Court
should hold, consistent with applicable precedent, that General Counsel
determinations are statutorily precluded from judicial review.
Montana Air, like the instant case, concerned a decision of the FLRA's
General Counsel not to issue a ULP complaint.[11] Rather than look
primarily to relevant precedent developed under the Statute or the NLRA, the
Ninth Circuit relied instead on the Supreme Court's decision in Chaney. The
court found that the General Counsel's determinations fell under the APA's
second exception to judicial review, namely, actions committed to agency
discretion. Therefore, relying upon Chaney, the court found they were
"presumptively unreviewable." 898 F.2d at 756. Applying Chaney, the Ninth
Circuit found the presumption against judicial review subject to specific
exceptions. These exceptions included that asserted by POPA as applicable
in this case, namely, where an agency has "'consciously and expressly
adopted a general policy' that is so extreme as to amount to an abdication
of its statutory responsibilities." Id. (quoting from Chaney, 470 U.S. at
833 n.4).[12]
However, the Ninth Circuit misconstrued the nature of Congress' intent with
respect to General Counsel ULP determinations. As the Supreme Court held
and this Court has recognized, General Counsel determinations with respect
to ULP complaints are exempt from judicial review, not simply because such
actions are committed to agency discretion under section 701(a)(2) of the
APA, but because the applicable statute precludes judicial review, hence
falling under section 701(a)(1). Food and Com'l Wkrs., 484 U.S. at 130;
Beverly Health, 103 F.3d at 154 .
The Chaney decision is inapplicable to General Counsel complaint
determinations because it applies only to matters falling under section
701(a)(2) of the APA. The Chaney Court carefully distinguished matters
precluded by statute from judicial review under section 701(a)(1) from those
"presumptively unreviewable" under section 701(a)(2). Section 701(a)(1)
applies "when Congress has expressed an intent to preclude judicial review."
Chaney, 470 U.S. at 830. In contrast, section 701(a)(2) applies where
"Congress has not affirmatively precluded review . . . ." Id.
The Ninth Circuit's application of the framework developed in Chaney and its
progeny to determinations of the General Counsel not to issue ULP complaints
should not be adopted. Instead, the Court should reassert its holding
announced in Turgeon that Congress intended that such determinations are
unequivocally exempt from judicial review.[13] Accordingly, the instant
petition for review should be dismissed for lack of jurisdiction.
2. POPA fails to establish that the General Counsel consciously and
expressly adopted a general policy so extreme as to amount to an
abdication of statutory responsibility
Even if the exceptions to the rule against reviewability suggested in
Montana Air were applicable to General Counsel ULP determinations, POPA has
failed to show that they apply in this case. Although POPA asserts in a
conclusory manner that the General Counsel has "'consciously and expressly
adopted a general policy' that is so extreme as to amount to an abdication
of its statutory responsibilities," it provides no support for its
claim.[14]
In the first place, POPA can cite no case where this purported exception has
been applied. Although both Chaney and Montana Air suggest the availability
of this exception, in neither case is the exception applied or even
discussed. Chaney, 470 U.S. at 832-33 and n.4; Montana Air, 898 F.2d at
756. Similarly in Brock (cited by POPA, Br. at 22), this Court noted only
that "plaintiffs' allegations [were] insufficient," and summarily rejected
the contention that the agency "ha[d] 'consciously and expressly adopted a
general policy' that is so extreme as to amount to an abdication of its
statutory responsibilities." 783 F.2d at 245.
Even lacking any guidance that judicial construction and application of the
exception might provide, it is evident that it cannot apply in this case.
At a minimum, to satisfy the Montana Act and Chaney exception, POPA must
show that the General Counsel's determination constituted an express
conscious adoption of "a general policy, and that adoption of that policy
"amount[s] to an abdication its statutory responsibilities." Montana Air,
898 F.2d at 756 (emphasis added). POPA has neither identified the general
policy announced in the General Counsel's determination nor shown how his
statutory responsibilities have been abdicated.
First, the General Counsel's decision was not the result of his express,
conscious adoption of any general policy to achieve the result POPA
disputes. What POPA identifies as "the most concise statement" of the
"general policy" adopted by the General Counsel in this case (Br. at 24) is
not a statement of policy at all. In the passage quoted by POPA, the Deputy
General Counsel, speaking for the General Counsel, stated that "the evidence
[was] insufficient to support a finding that the agency and the Union had
reached an agreement . . . ." Ignoring the Deputy General Counsel's express
statement that this was an evidentiary finding, POPA asserts (Br. at 24),
without any explanation whatsoever, that "this statement is not an
evaluation of the weight of evidence, but rather, a conclusion of law." It
is clear, however, that the General Counsel's determination is not a
statement of policy, but is simply the application of law to the particular
facts of this case.
Second, POPA fails to identify any statutory responsibility that the General
Counsel "abdicated." Even if the General Counsel could be deemed to have
adopted a "general policy" by insisting, consistent with Authority and other
precedent, upon sufficient evidence of mutual agreement before concluding
that a contract had been formed, there are no grounds for finding such an
adoption "so extreme" as to constitute an abdication of a statutory
responsibility. POPA's dispute with the General Counsel appears to focus on
the evidentiary sufficiency of the record to support a ULP complaint and
prosecution. That is, POPA claims that the General Counsel erred as a
matter of law in determining that there was insufficient evidence to issue a
ULP complaint.
But legal error, even if it was present in this case, is not abdication of a
statutory responsibility "so extreme" as to constitute an exception to
nonreviewability. If it were, every alleged error of law would become a
basis for review, thus defeating congressional intent that there be no
judicial review of General Counsel determinations not to issue ULP
complaints. See Griffith v. FLRA, 842 F.2d 487, 494 (D.C. Cir. 1988).[15]
In sum, POPA's arguments consist of nothing more than its disagreement with
the merits of the General Counsel's determination not to issue a ULP
complaint.[16] Such disagreement, regardless of whether or not it is
supportable, is insufficient to establish jurisdiction in this case. See
Griffith, 842 F.2d at 493 ("[g]arden-variety" errors of law or fact do not
make an otherwise nonreviewable agency determination reviewable); see also
Bishop v. NLRB, 502 F.2d 1024, 1032 (5th Cir. 1974) (same).
II. ASSUMING, FOR THE SAKE OF ARGUMENT, THAT THE COURT HAS JURISDICTION, THE
GENERAL COUNSEL PROPERLY DETERMINED THAT THERE WAS INSUFFICIENT EVIDENCE OF A
VIOLATION OF THE STATUTE TO WARRANT THE ISSUANCE OF A ULP COMPLAINT
A. The General Counsel reasonably concluded that PTO was not obligated to
implement POPA's proposed Article 19 because no agreement had been reached
In determining not to issue a complaint, the General Counsel applied
established principles of law to the facts of the case as disclosed by his
investigation. POPA's ULP charge alleged that PTO violated various
provisions of the Statute when it refused to sign and implement a proposed
agreement on performance appraisals (Article 19). The General Counsel
properly determined, in light of Authority precedent, that there was
insufficient evidence to establish that PTO was obligated to implement the
performance appraisal plan as proposed by POPA.
Pursuant to the impasse resolution provisions of the Statute, an interest
arbitrator had imposed an article on performance appraisals as part of a
basic collective bargaining agreement. The imposed article was submitted to
the agency head for review under section 7114(c) of the Statute. See Patent
Office Professional Ass'n and U.S. Dep't of Commerce, Patent and Trademark
Office, 41 FLRA 795, 798 (1991) (where Panel orders interest arbitration,
arbitrator's award is subject to agency head review). Finding some of the
imposed provisions to be inconsistent with law or applicable regulation, the
agency head disapproved the agreement. After protracted litigation with
POPA, the agency head's disapproval was upheld to a significant degree. See
POPA v. FLRA, 26 F.3d at 1154-57; see also POPA, 47 FLRA at 10-13.
As established in Authority case law, collective bargaining agreements, not
specific provisions of those agreements, are approved or disapproved by
agency heads under section 7114(c). See National Treasury Employees Union,
Chapter 251 and U.S. Dep't of the Treasury, IRS, Washington, D.C., 40 FLRA
985, 990 (1991) (NTEU Chapter 251) (citing Department of the Interior, Nat'l
Park Serv., Colonial Nat'l Historical Park, Yorktown, Virginia, 20 FLRA 537,
541 (1985), aff'd sub nom. National Ass'n of Gov't Employees, Local R4-68 v.
FLRA, 802 F.2d 1484 (4th Cir. 1986)). Consequently, when provisions of a
collective bargaining agreement are timely disapproved by the agency head
under section 7114(c), the collective bargaining agreement does not go into
effect and is not enforceable under provisions of section 7114(c). Id. As
the Deputy General Counsel noted, the only exception is when agreed-upon
ground rules dictate otherwise, which they did not in this case.
Accordingly, agency head disapproval of a collective bargaining agreement
requires renegotiation by the parties to create an effective and enforceable
agreement. Id. at 991. As POPA recognizes (Br. 24), this is sound policy
because disapproval of one section of an agreement may affect other
sections.[17] Parties may agree to implement specific provisions of the
agreement not disapproved by the agency, but are not obligated to do so.
Id. at 990.
In the instant case, during negotiations following agency head review
disapproval and the attendant litigation, POPA proposed that the parties
adopt as Article 19 those provisions imposed by the arbitrator which were
unaffected by agency head review and not ruled beyond the arbitrator's
authority to impose. PTO did not specifically respond to POPA's proposal.
The General Counsel stated that "investigation [showed] that [PTO] would not
agree [to the proposal]." (JA at 274). Citing NTEU, Chapter 251, the
General Counsel reasonably concluded that there had been no agreement with
respect to Article 19 and accordingly, the agency was under no obligation to
implement the union's proposal.
B. POPA's other contentions are without merit
1. Silence by PTO does not create a "constructive" agreement with
respect to Article 19
POPA first erroneously argues (Br. at 16) that there was "constructive"
agreement on Article 19 because POPA had withdrawn all proposals awarded by
the arbitrator but stricken by the Authority or this Court, and PTO had not
presented any additional proposals for consideration. POPA essentially is
asking the General Counsel to presume agreement from PTO's silence.
However, POPA cites no authority to support its contention. Cf. U.S. Dep't
of the Navy, Portsmouth Naval Shipyard, Portsmouth, NH, 44 FLRA 205, 206
(1992) (Authority did not find implied agreement, noting that the purpose of
section 7114(b)(5)'s requirement that a written document executing the terms
of an agreement be signed is to "ensure that, in fact, there is a 'meeting
of the minds' on the terms of the agreement" (internal citations omitted)).
2. This Court did not order the parties to implement a collective
bargaining agreement
POPA also incorrectly argues (Br. at 28) that the General Counsel's
determination fails to give effect to this Court's decision in POPA v. FLRA.
The Court's decision in POPA v. FLRA was a review of an Authority
negotiability determination, the result of which was to affirm the
Authority's decision in part and to reverse it in part. 26 F.3d at 1157.
The Court did not order PTO to implement any specific collective bargaining
provisions.
POPA relies on statements by the Court allegedly to the effect that
provisions ordered by the arbitrator not affected by its decision or that of
the Authority "remain part of the parties' agreement." POPA's reliance is
misplaced. First, the Court made no determinations concerning proposed
contractual provisions not before it. It thus made no holding concerning
the ultimate contents of the parties' collective bargaining agreement.
Second, the Court's statement (26 F.3d at 1154) that provisions "we sustain
as negotiable will remain part of the parties' agreements" is by its terms
limited to those provisions actually before the Court. The Court
subsequently sustained no provisions as negotiable. Accordingly, there are
no provisions of which it could be said that the Court directed their
inclusion in the parties' agreement.
3. The prospect of additional bargaining does not justify reversing the
General Counsel's determination
Finally, POPA contends (Br. at 25-28), without merit, that the General
Counsel's decision frustrates the impasse resolution processes of the
Statute. POPA argues that, as a result of the General Counsel's
determination, POPA's only option is to return to the bargaining table and,
therefore, the parties will be "back to the initial phase of negotiations in
which all the proposals will be at issue." Noting the parties' failure to
reach an agreement after fifteen years of negotiations, POPA speculates that
another protracted round of negotiations and litigation will ensue.
It is true, of course, that under the Authority's case law discussed
previously (pp. 27-28), parties ordinarily must return to the bargaining
table after an agency head's disapproval of a contract is upheld, even in
part. See NTEU Chapter 251, 40 FLRA at 990. POPA concedes (Br. at 14) that
such a result is appropriate under the Statute. It is therefore apparent
that, insofar as POPA objects to such renegotiations, POPA's quarrel is with
the Authority's case law rather than with the General Counsel's
determination not to issue a ULP complaint, made in part in observance of
that case law. Moreover, even assuming that this protracted and contentious
process will continue, POPA has failed to point to any case law indicating
that this potential would serve as a basis for reversing the General
Counsel's determination not to issue a complaint.
In sum, if the Court determines that it has jurisdiction to review the
merits of the General Counsel's determination, it should conclude that the
General Counsel did not abuse his discretion in refusing to issue a
complaint in this case. Rather, his determination was reasonable and should
be upheld.
CONCLUSION
For the foregoing reasons, the petition for review should be dismissed for
lack of subject matter jurisdiction. In the event that the court reaches
the merits of the case, the petition for review should be denied.
Respectfully submitted.
______________________________
DAVID M. SMITH
SOLICITOR
______________________________
WILLIAM R. TOBEY
DEPUTY SOLICITOR
______________________________
JAMES F. BLANDFORD
ATTORNEY
Federal Labor Relations Authority
607 14th Street, N.W.,
Suite 330
Washington, D.C. 20424
(202) 482-6620
September 1997
IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
_______________________________
PATENT OFFICE PROFESSIONAL ASSOCIATION,
Petitioner
v. No. 96-1277
FEDERAL LABOR RELATIONS AUTHORITY,
Respondent
_______________________________
CERTIFICATE OF SERVICE
I certify that copies of the Final Brief For The General Counsel Of The
Federal Labor Relations Authority have been served this day, by mail, upon
the following:
Lynne K. Zusman, Esq.
Counsel for Appellant Union
1090 Vermont Avenue, N.W.,
Suite 920
Washington, D.C. 20036
Thelma Brown
Paralegal Specialist
September 17, 1997
I certify that the Final Brief of the Federal Labor Relations Authority does
not exceed 12,500 words, the maximum amount allowed under Circuit Rule 28(d).
James F. Blandford
Attorney
September 17, 1997
[1] Relevant statutory and regulatory provisions are set forth in
Addendum A.
[2] For a more detailed exposition of this background see generally
Patent Office Professional Association and United States Department of Commerce,
Patent and Trademark Office, Washington, D.C., 47 FLRA 10, 13-15 (1993)("POPA"),
aff'd in part and rev'd in part, 26 F.3d 1148 (D.C. Cir. 1994).
[3] The Panel, an entity within the FLRA, is charged with assisting
federal sector parties in resolving negotiation impasses. The Panel has broad
authority under the Statute and may take whatever action it deems appropriate to
resolve impasses, including the imposition of contract terms. See generally 5
U.S.C. § 7119.
References to "JA" are to the Joint Appendix, filed with the Court on
September 17, 1997.
[4] In declining to decide performance appraisal issues in his June 1986
award, the arbitrator noted that there were related negotiability appeals
pending before the FLRA. POPA, 47 FLRA at 14. The FLRA issued its decisions in
these cases in 1987. Patent Office Professional Ass'n and Patent and Trademark
Office, Dep't of Commerce, 25 FLRA 384 (1987), aff'd 868 F.2d 458 (D.C. Cir.
1988) (Table) and Patent Office Professional Ass'n and Patent and Trademark
Office, Dep't of Commerce, 29 FLRA 1389 (1987), aff'd 873 F.2d 1485 (D.C. Cir.
1989).
[5] PTO refused to participate after the first day because of its
objections to the arbitrator's jurisdiction over the January 1988 proposals.
POPA, 47 FLRA at 15.
[6] Under section 7114(c) of the Statute, the agency head may review a
collective bargaining agreement to assure that its provisions are consistent
with applicable law, rule, or regulation. A union may appeal an agency head's
disapproval as a negotiability appeal under section 7117. Interpretation and
Guidance, 15 FLRA 564, 567 (1984), aff'd sub nom. American Fed'n of Gov't
Employees, AFL-CIO v. FLRA, 778 F.2d 850 (D.C. Cir. 1985)
[7] Although finding that PTO was not contractually bound by any of the
1988 proposals, the Court affirmed the Authority's determinations that the
proposals were negotiable under the Statute. 26 F.3d at 1154.
[8] POPA requested that the General Counsel reconsider his decision.
(JA at 276). By letter dated September 6, 1996, the General Counsel denied
POPA's request. (JA at 302).
[9] See 29 U.S.C. §§ 151, 153(d), and 160(e) and (f) (1994).
[10] The APA provides for judicial review of final agency actions "for
which there is no other adequate remedy in a court." 5 U.S.C. § 704.
[11] In Montana Air, plaintiff union had initially sought review of the
General Counsel's determination not to issue a complaint in the United States
District Court for the District of Montana. The District Court dismissed the
union's action for lack of subject matter jurisdiction, citing Turgeon among
other cases. Montana Air Chapter No. 29, Association of Civilian Technicians,
Inc. v. FLRA, 632 F.Supp. 643, 645 (D. Mont. 1986),
[12] In Montana Act the court applied a different exception, finding that
the General Counsel erred in concluding that he lacked jurisdiction to issue an
unfair labor practice complaint. 898 F.2d at 763.
[13] This is not to say that there could never be a case where a General
Counsel determination would be subject to limited review. Authority decisions
on exceptions to arbitration awards under section 7122 of the Statute are
expressly excluded from the judicial review provisions of section 7123.
Nonetheless, this Court has suggested that under Leedom v. Kyne, 358 U.S. 184
(1958), district court review of such decisions may be available in the limited
circumstances where the FLRA has acted "in excess of its delegated powers and
contrary to a specific prohibition in the [Statute]." U.S. Dep't of Justice v.
FLRA, 981 F.2d 1339, 1342 (D.C. Cir. 1993). Review may also be available where
constitutional issues are present. See Griffith v. FLRA, 842 F.2d 487 (D.C.
Cir. 1988) (Circuit Court may review constitutional claims arising from
Authority decisions on exceptions to arbitration awards). POPA has not
suggested that either of these circumstances is present here.
[14] On page 30 of its brief, POPA references a different exception to
the presumption against reviewability, namely that review is available where the
"legal challenge focuses on an announcement of a substantive statutory
interpretation." (Br. at 30, citing International Union, United Automobile,
Aerospace & Agricultural Implement Workers v. Brock, 783 F.2d 237, 245 (D.C.
Cir. 1986) (Brock)). POPA does not appear to rely on this exception as an
independent basis for jurisdiction. Nonetheless, it would be inapplicable
because no statutory interpretation was announced in the General Counsel's
decision. As discussed below, the General Counsel relied on established
Authority case law.
[15] POPA claims (Br. at 23) that the FLRA has abandoned its
"independent" role in resolving federal sector labor disputes because it
functioned in this case "as a 'pass through' for management's position." But as
with other POPA arguments, this is nothing more than POPA's disagreement with
the General Counsel's determination. Adoption of one party's position in a case
before him does not equate to the General Counsel's abandonment of his
independent statutory role in issuing and prosecuting ULP complaints under the
Statute.
[16] POPA's substantive objections to the General Counsel's determination
are discussed in Section II, below.
[17] For example, the disapproved section may modify or limit another
section, leaving the remaining section with an effect unintended by the parties.
Further, the disapproved section may have been agreed to only as a quid pro quo
for another section, thus creating a contractual benefit for one party without
an agreed-upon offsetting burden.