Closed Court Litigation

The district court granted the FLRA's motion to dismiss a complaint concerning the General Counsel's declination to issue an unfair labor practice complaint and decision to deny plaintiffs' request for reconsideration of the General Counsel's declination.

The Tenth Circuit affirmed the Authority’s decision dismissing the union’s negotiability appeal for failure to serve the "head of the agency." Under 5 U.S.C. § 7117(c)(2)(B), a union filing a negotiability appeal with the Authority must furnish a copy of the petition to the "head of the agency." The union claimed that service on the Secretary of the Air Force met the statutory requirements in this case, and declined to comply with an Authority order to serve the Secretary of Defense. The court agreed with the Authority’s interpretation of the Statute, and concluded that for this particular case, the Secretary of Defense is the "head of the agency" for purposes of the service requirements of § 7117(c)(2)(B). The court also rejected the union’s arguments that the Authority’s actions were "arbitrary and capricious," noting in particular that the Authority’s order to show cause gave the union adequate notice of the service requirements and an opportunity to take corrective action.

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 D.C. Circuit denied the union’s petition seeking 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 D.C. Circuit granted the union’s petition for review. The union sought review of an Authority decision that the agency had not committed ULPs by repudiating collective bargaining agreements concerning drug testing when it removed bargaining unit employees who had entered into a drug rehabilitation program.

In this negotiability case, the D.C. Circuit upheld the Authority's decision finding nonnegotiable a proposal establishing competitive areas for use in reductions-in-force. The court agreed with the Authority that the union's proposal purports to define supervisors' competitive areas, along with those of unit employees, and thus was beyond the scope of the agency's duty to bargain as discussed by the court in United States Department of the Navy, Naval Aviation Depot, Cherry Point, North Carolina v. FLRA, 952 F.2d 1434 (D.C. Cir. 1992).

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 local's petition for review of the Authority's determination that the agency had not committed a ULP by refusing to bargain. The Authority's reasoning, upheld by the court, was that an agency is obligated to bargain if: (i) the exclusive representative requests "term negotiations"; (ii) the union requests bargaining consistent with the status quo after expiration of a collective bargaining agreement; or (iii) the request is an appropriate request for mid- term bargaining. The court held that the bargaining request was not made at the level of exclusive recognition, did not request bargaining consistent with the status quo, and could not have been a request for mid-term bargaining inasmuch as the collective bargaining agreement had expired at the time the request was made.

The D.C. Cir. denied the union's petition for review.  The union sought review of an Authority decision finding that the agency did not commit a ULP by refusing to execute a collective bargaining agreement reached between the parties but disapproved by OMB.

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 or approved by the Solicitor General. The Authority's order was enforced.

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 court dismissed the union's petition for review of an Authority decision finding nonnegotiable a proposal requiring the agency to convert certain full-time military positions to positions that could be filled by civilian technicians or other types of personnel. The court agreed with the Authority that the Guard's regulation, ANGI 36-101, does not require the Guard to hire civilian technicians.

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 ruled that it lacked jurisdiction over two unions' petition for review of an Authority negotiability decision because the petition was prematurely filed. The court agreed with the Authority that the unions' pending request for administrative reconsideration rendered the underlying Authority action nonfinal. The court further agreed that the Authority's subsequent issuance of a final order in the case, denying the request for reconsideration, did not cure the petition's prematurity.

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, per curiam, the union’s petition seeking review of the Authority decision on remand finding nonnegotiable a proposal requiring the agency, among other things, to negotiate over the assignment of military training duties.

The court granted the Authority's motion to dismiss, for lack of jurisdiction, a petition challenging the Office of General Counsel's denial of petitioner's unfair labor practice charges.

The district court adopted the report and recommendation of the magistrate judge and granted the Authority's motion to dismiss or, in the alternative, for summary judgment. The complaint sought to compel the FLRA's General Counsel to issue unfair labor practice complaints and to obtain documents withheld by the General Counsel under the Freedom of Information Act. Recognizing that the General Counsel has unreviewable discretion to decline to issue unfair labor practice complaints, the Court dismissed the complaint's unfair labor practice claims because it lacked subject matter jurisdiction. The Court also granted the Authority's motion for summary judgment with regard to the plaintiff's Freedom of Information Act claim. It found that the portions of the attorney notes and the investigative reports withheld from the Plaintiff were protected from disclosure by the deliberative process privilege and the attorney-client and work product privileges. The court also upheld the General Counsel's claim that Freedom of Information Act Exemption 7(C) (protection of privacy interests of third parties) and Freedom of Information Act Exemption 7(D) (protection of identity of confidential sources) protected from disclosure several documents created during the investigation of the Unfair labor practice charges.

The Supreme Court overturned Authority rulings on the release of employee home addresses and held that the Privacy Act prevents disclosure of home addresses to collective bargaining representatives who had requested the information under the Statute. The Court had granted review of a Fifth Circuit decision (975 F.2d 1105 (5th Cir. 1992)) enforcing Authority disclosure orders. The Court ruled that the Privacy Act's bar applied because disclosure was not required under Exemption 6 of the Freedom of Information Act (FOIA), which exempts from disclosure personnel files "the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." The Court held that under Dep't of Justice v. Reporters Comm. for the Freedom of Press, 489 U.S. 749 (1989), the only public interest to be balanced against the employees' privacy interest in keeping their home addresses private is the extent to which the FOIA's central purpose of opening agency action to public scrutiny would be served by disclosure.

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).

The D.C. Cir. denied the agency's petition for review, and enforced the Authority's decision and order finding that the agency committed a ULP by violating § 7116(a)(1) and (8) of the Statute when it failed to provide the union notice and an opportunity to be represented at a mediation session concerning a formal EEO complaint.

The D.C. Circuit, applying the doctrine of sovereign immunity, overturned an Authority remedial order requiring an agency to reimburse unit employees for money lost as a result of a change in the agency's pay lag policy. The Authority ordered the reimbursement remedy after the agency had changed the date it delivered paychecks to employees prior to completion of bargaining with the union. The court held that the doctrine of sovereign immunity barred the Authority from directing such a reimbursement remedy. The court ruled that the Statute's remedial provisions were not clear and specific enough to waive the immunity of the United States to an award of such money damages.

The Authority sought review of a district court decision denying temporary injunctive relief in a ULP case. After the Authority issued a final decision on the underlying ULP, the First Circuit, at the Authority's request, vacated the district court's decision and remanded the case to the district court with directions to dismiss the original complaint for injunctive relief as moot.

The D.C. Circuit dismissed for lack of jurisdiction the Agency's petition for review of an Authority decision on exceptions to an arbitrator's award. The Authority had modified an arbitrator's award, which denied in part and sustained in part a grievance alleging that the Agency had violated the Fair Labor Standards Act. The Authority found that the award should have included the payment of liquidated damages and that it had disregarded the appropriate statute of limitations. The court agreed with the Authority that the court could not review the decision under 5 U.S.C. § 7123(a), and that the Supreme Court's ruling in Leedom v. Kyne did not apply.

The Supreme Court granted the Authority's petition for certiorari and vacated the Second Circuit's denial of summary enforcement of an Authority decision that found that the Agency had violated its employees' rights under section 7114(a)(2)(B) of the Statute. The Court directed the Second Circuit to reconsider its ruling in light of the Court's recent decision in NASA v. FLRA, 527 U.S. 229 (1999).

The First Circuit granted the Authority's petition for enforcement of an unexcepted-to-ALJ decision finding that the Agency violated the Statute by repudiating an MOU. The court enforced the Authority's order even though the Agency agreed, on the eve of oral argument, to comply. The court stated in this regard that "judicial enforcement will serve as an effective reminder to the respondent of its continuing obligation fully and seasonably to effectuate the terms of the Authority's remedial order."

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, 119 S. Ct. 1979 (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 First Circuit affirmed the Authority's determination that an agency's refusal to bargain over a proposal for official time for lobbying did not violate the Statute. The Authority had ruled that the proposal 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 proposal was inconsistent with federal law and therefore not within the Agency's duty to bargain.

The union and a bargaining unit member seek review of an Authority decision setting aside an arbitrator’s award as deficient because it resolved a classification matter within the meaning of section 7121(c)(5) of the Statute.

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 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.   

The Supreme Court affirmed the Authority's (50 FLRA 601 (1995)) and the Eleventh Circuit's decisions (FLRA v. Nat'l Aeronautics and Space Admin., 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 D.C. Circuit issued a decision reversing and remanding a decision of the district court in a declaratory judgment proceeding involving the Federal Service Impasses Panel.  The district court dismissed for lack of jurisdiction the Union's suit seeking a declaratory judgment, 582 F.Supp.2d 18 (D.D.C. 2008).  The Union had sought a ruling that the FSIP had jurisdiction over an inpasse with the Agency.  The Union also sought an injunction requiring the FSIP to assert jurisdiction over all such pending and future impasses.

The U.S. District Court for the District of Columbia District has dismissed the union's complaint. The unions sought declaratory and injunctive relief against FSIP, challenging FSIP decisions declining to assert jurisdiction over certain bargaining impasses with the FAA concerning employee compensation. (03 FSIP 144; 149, 150, 151 and 157).

The Eleventh Circuit denied, per curiam, the union’s petition seeking review of an Authority decision adopting an ALJ determination. The ALJ determined that the General Counsel was entitled to summary judgment when the union failed to answer a ULP complaint. The complaint alleged that the union violated the duty of fair representation by failing to poll all bargaining unit members in determining a watch schedule. Regarding the Authority’s refusal to consider several claims that the union had asserted for the first time in its exceptions to the ALJ’s determination, the court explored whether manifest injustice would result if it honored the invocation of this procedural bar. Based on the exceedingly limited scope of the cease and desist order issued against the union, the court concluded there was no basis for overturning the Authority’s procedural bar ruling.

The D.C. Circuit denied the Union's petition for review of an Authority negotiability decision. The court deferred to the Authority's determination that the subject of the Union's bargaining proposal is not a negotiable "condition of employment" as defined in 5 U.S.C. § 7103(a)(14) because it "relat[es] to the classification of any position."

The court denied the union's petition for review of an Authority decision (65 FLRA (No. 220) 1052 (2011)), in which the Authority denied exceptions to an Administrative Law Judge's recommendation that a consolidated complaint be dismissed.  The complaint alleged that the agency violated the Statute by repudiating an agreement it reached with the charging parties regarding parking at the agency's facility.  The ALJ, affirmed by the Authority, found that the agreement was contrary to the Statute because it sought to regulate the conditions of employment in another bargaining unit outside the duty to bargain.

The D.C. Circuit granted the union’s petition for review and remanded the case to the Authority.  In the decision under review, the Authority ruled that two union proposals calling for the disclosure of certain documents interfered with the agency’s statutory right to assign work because the agency would have to assign personnel to review a large number of documents sought by the union.  The court concluded the decision was contrary to longstanding Authority precedent making it clear that union proposals interfere with the right to assign work only when they specify which employees are to perform the task at issue, which neither proposal in this case did.  In these circumstances, the court granted the union’s petition for review and remanded the case for issuance of a bargaining order.

The D.C. Circuit denied the unions’ petition for review of the Authority’s decision that there was no duty to bargain over proposals addressing the process that the agency’s Office of Equal Employment Opportunity is to follow when investigating formal EEO complaints. The Authority treated as untimely, and thus ignored, the unions’ response to the agency’s statement of position because the unions sent the response using Federal Express and it was received one day late.

The Union sought review of the Authority's decision (64 FLRA (No. 156) 833 (5/28/2010)) denying exceptions filed by both the Agency and the Union to an arbitrator's award.  The arbitrator found that the Agency violated the collective bargaining agreement and sections 7116(a)(1), (2), and (5) of the Statute when it advised all managers and employees that it would process employees' dues revocation forms even if the forms had not been signed or initialed by a Union official.  However, the arbitrator also found that a remedy the Union requested, reimbursement of dues from all of the employees whose revocation forms were processed without a Union official's signature, was not appropriate.  The court denied the union's petition for review.

The D.C. Circuit denied the union’s petition seeking review of an Authority decision denying the union's exceptions to an arbitrator's award finding that the agency did not violate the Statute and provisions of the parties' collective bargaining agreement by refusing to bargain at the local level over the impact and implementation of changes concerning the length of employees' bridge assignments and regular days off.

The D.C. Circuit denied in part and granted in part a petition for review of an Authority decision dismissing ULP charges against the Agency. The Agency had denied NTEU a permit to distribute literature on the sidewalks of an agency facility at which another union was the exclusive representative. The Authority determined (1) that the denial of a permit did not amount to unlawful assistance to the incumbent Union under section 7116(a)(3), and (2) that, applying the principles of Babcock & Wilcox, the permit denials did not discriminate against NTEU under section 7116(a)(1). The court affirmed the Authority's decision that the Agency did not unlawfully assist the incumbent. The court also found, however, that the Babcock & Wilcox rule did not protect the Agency's denial of permits to NTEU because the Agency did not have a general no-solicitation policy. Noting that the Authority was not required to adopt Babcock & Wilcox, the court remanded the case to the Authority to re-examine the question whether the Agency violated section 7116(a)(1). However, the court concluded that if the Authority determined that the Agency did violate section 7116(a)(1), the Authority was obliged to apply retroactively its newly adopted standard and award NTEU a remedy. The Authority's petition for re-hearing was denied.

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 the union’s petition seeking review of an Authority decision setting aside an arbitrator’s award.  The award found that the agency acted improperly by failing to negotiate with the union prior to implementing changes in its National Inspectional Assignment Policy (NIAP).  The court upheld the Authority’s conclusion that the agency’s revision to the NIAP constituted the exercise of management rights.  Finally, the court found that the Authority’s decision did not misapply its precedent.  

The Ninth Circuit denied the union’s petition seeking review of an Authority decision finding nonnegotiable a proposal providing that transferred employees will continue to receive for 3 years the geographically-based pay differential of the office from which the employees are transferred where that differential is higher than the differential of the area to which the employees are transferred.

In a per curiam decision, the Ninth Circuit denied the union’s petition for review of an Authority decision dismissing complaints alleging that the agency committed ULPs by improperly implementing new inspection assignment changes. This case raised the identical issues as Nat’l Treasury Employees Union v. FLRA, 453 F.3d 506 (D.C. Cir 2006) and the 9th Circuit “adopt[ed] as its own” the rationale of the D.C. Circuit.

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 D.C. Circuit granted the union's petition for review and remanded the case to the Authority.The union sought review of an Authority decision finding outside the duty to bargain a union proposal that would increase staff at a specific agency office.

In this case, the D.C. Circuit agreed with the Authority's determination that three Union bargaining proposals were nonnegotiable either as procedures or as appropriate arrangements under section 7106(b)(2) and (3) of the Statute. The Union submitted the proposals at issue in response to the Patent and Trademark Office's decision to revise the performance appraisal plans for patent classifiers. The Court determined, in agreement with the Authority, that the first proposal, addressing situations involving other employees over whom a classifier had no control, would improperly limit management's ability to hold a classifier accountable for his or her ability to facilitate and expedite the work of other patent classifiers and patent examiners. The Court also rejected the last two proposals, finding that they would intrude substantively upon management's ability to direct employees and to assign them work requiring the exercise of judgment. The proposals effectively prohibited the agency from holding a classifier accountable for his or her performance in any situation that the agency had not anticipated and addressed in writing. Accordingly, the Court denied the Union's petition for review.

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.

The court dismissed an individual's appeal of the General Counsel's refusal to issue an unfair labor practice complaint.

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 Labor 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 D.C. Circuit denied an individual's petition for review of an Authority decision dismissing unfair labor practice complaints against an agency and a union. Agreeing with the Authority, the court held that section 7120(e) of the Statute does not preclude a union official from serving simultaneously as an ethics counselor. The individual had claimed that such dual service created a "conflict of interest" in violation of section 7120(e). The court disagreed, affirmed the Authority's "objective person" criteria for determining whether a conflict of interest exists within the meaning of section 7120(e), and denied the petition.

The Fourth Circuit denied enforcement to an Authority decision finding that the Department of Energy (the Department) committed unfair labor practices under section 7116(a)(1), (5) and (6) of the Statute by refusing to approve a contract provision that had been included in the parties' collective bargaining agreement at the direction of the Federal Service Impasses Panel. The provision would have required midterm bargaining on union-initiated proposals not contained in or covered by the collective bargaining agreement. The court relied on its decision in Social Security Administration v. FLRA, 956 F.2d 1280 (4th Cir. 1992), in which the court held that it was not an unfair labor practice for an agency to refuse to bargain on a union-initiated mid-term bargaining demand.

The Agency sought review of the Authority's decision (64 FLRA (No. 95) 559 (3/5/2010) denying the Agency's exceptions to an arbitrator's award.  In its decision, the Authority found that the Agency violated section 7116 (a)(1) and (5) of the Statute and the parties' agreement by refusing to bargain over the impact and implementation of a change involving correctional service rosters.  The Agency's petition for review was granted.

The D.C. Circuit denied an agency's petition for review of an Authority decision in a section 7114(b)(4) information case. The Authority had ruled that the Agency committed a ULP by failing to provide the Union with certain disciplinary records the Union had requested in connection with a proposed removal. The court found that even though a union is not obligated to provide representation to a bargaining unit employee in responding to a proposed removal, if it does provide representation, the union is entitled to exercise its right to request information under the Statute. The court also agreed with the Authority that the requested information was "necessary" at the oral reply stage of the proposed removal action because the Union needed the documents concerning how the Agency disciplined other employees to assess whether the proposed punishment was appropriate. The court therefore agreed with the Authority that the Agency committed a ULP by refusing the Union's request for the disciplinary records.

The Court granted the agency's petition for review of an Authority decision, 64 FLRA (No. 210) 1194 (7/30/2010), on the union's negotiability appeal involving four proposals.  The Authority found three of the proposals to be outside the duty to bargain.  However, the Authority found the fourth proposal, that the agency provide cleaning services for uniforms that bargaining unit employees are required to wear in the performance of their civilian duties, to be within the duty to bargain.   The Court reversed the Authority's decision, finding that the proposal would require the agency to make an unauthorized expenditure.

The Ninth Circuit reversed and remanded an FLRA decision ordering the agency to bargain in good faith over a proposal on Sunday premium pay. That benefit had been included in a 1968 negotiated agreement between the agency and a union representing bargaining unit employees. The Authority held that this agreement provision satisfied the requirement under § 704 of the Civil Service Reform Act, that in order for an otherwise nonnegotiable pay matter to be negotiable under that section, it must have been the subject of negotiation prior to August 19, 1972. The agency argued that this requirement was not met because, although Sunday premium pay was referenced in the 1968 agreement, it was simply listed as a statutory entitlement. It was not, the agency argued, the product of give-and-take negotiations. The Ninth Circuit agreed with the agency and reversed the Authority. The court of appeals held that the listing of a statutory benefit in a negotiated agreement does not constitute the kind of negotiations required in § 704.

The court disimissed the agency's petition for review for lack of jurisdiction under 5 U.S.C. 7123(c). The petitioner sought review of an Authority decision (65 FLRA (No. 109) 509), in which the Authority found that several agreed-upon provisions disapproved by the agency head were appropriate arrangements.  Based on a revised analytical framework, the Authority found the provisions to be appropriate arrangements because they did not abrogate the management rights that the provisions affected.