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FLRA Briefs

The briefs listed below were prepared and filed by the Office of the Solicitor in litigation involving the FLRA. The listing is arranged alphabetically by case caption.

Although we endeavor to ensure that electronic copies of these briefs are complete and accurate, errors or omissions may occur. The official text of any brief is the text filed with the court.

• American Federation of Government Employees v. FLRA, 144 F.3d 85 (D.C. Cir. 1998), 
  reviewing 52 FLRA 1195 (1997).

The D.C. Circuit denied a union's petition for review of an Authority ULP decision in an information case arising under section 7114(b)(4) of the Statute. The complaint alleged that the Agency improperly refused to provide documents requested by the union in connection with a pending grievance. Characterizing as "conclusory" the union's claim that it "needed the information to prepare for arbitration of its previously filed grievance," the Authority found that the union failed to articulate a particularized need for the documents. The court agreed, rejecting the union's claim that the connection between the information the union sought and the grievance was "self-evident."
Brief for the Federal Labor Relations Authority

• American Federation of Government Employees v. FLRA, 130 F.3d 450 (D.C. Cir. 1997), 
  reviewing 51 FLRA 1549 (1996) and 51 FLRA 1693 (1996).

The court dismissed, per curiam, union petitions for review of two Authority decisions reviewing arbitration awards, on the ground that the court lacked jurisdiction under section 7123 of the Statute. In the cases involved, the Authority set aside arbitrators' awards granting severance pay. The court concluded that it lacked jurisdiction under section 7123, and determined that other jurisdictional grounds, such as that provided by the Supreme Court's Leedom v. Kyne decision, did not apply.                                                                                 
Brief for the Federal Labor Relations Authority

• American Federation of Government Employees, Local 1302 v. FLRA, No. 05-1168 
  (D.C. Cir., filed May 20, 2005), reviewing   60 FLRA 752

  The union seeks review of an Authority ULP decision finding that certain statements of an agency management official, and the agency's failure to promote an employee who had engaged in protected activities, did not violate the Statute.                                                                               
  Brief for the Federal Labor Relations Authority

• American Federation of Government Employees, Local 1647  v. FLRA, 388 F.3d 405 
  (3d Cir. 2004), reviewing 59 FLRA 369 (2003).

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.   
Brief for the Federal Labor Relations Authority 

• American Federation of Government Employees, Council 147, AFL-CIO v. FLRA, 
  204 F.3d 1272 (9th Cir. 2000), reviewing 54 FLRA 444 (1998).

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). 
Brief for the Federal Labor Relations Authority

• American Federation of Government Employees, Council of GSA Locals, Council 236 v. FLRA, 
  No. 99-1244 (D.C. Cir. 2000) [unpublished decision], reviewing 55 FLRA 449 (1999).

The D.C. Circuit denied the union's petition for review of an Authority decision that the union's proposal regarding performance ratings is outside the duty to bargain. The court found reasonable and deferred to the Authority's explanation of why performance rating levels are not a "method" or "means" of performing work. 
Brief for the Federal Labor Relations Authority

• American Federation of Government Employees, AFL-CIO, Local 1592 v. FLRA, 288 F.3d 1238  
  (10th Cir. 2002), reviewing 0-NG-2577-REC.

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

• American Federation of Government Employees, AFL-CIO, Local 2263 v. FLRA, No. 05-9543 
  (10th Cir., filed May 25, 2005),reviewing  60 FLRA 791

  The union seeks review of an Authority decision finding that the agency did not commit ULPs for failing to provide the union with requested information under § 7114(b)(4) of the Statute because the union did not meet its burden of articulating and establishing a particularized need for the information. 
  Brief for the Federal Labor Relations Authority

•  American Federation of Government Employees, Local 2924 v. FLRA, No. 05-1241 
  (D.C. Cir., filed July 8, 2005),reviewing  60 FLRA 895

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

• American Federation of Government Employees, Local 3936, AFL-CIO v. FLRA, 239 F.3d 66 
  (1st Cir. 2001), reviewing 56 FLRA 174 (2000).

  The First Circuit affirmed the Authority's final decision and order finding that in an unfair labor practice proceeding, the Authority lacked jurisdiction over National Guard technician terminations. The court agreed with the Authority "that the plain language of section 709(f)(4) of the Technicians Act categorically precludes review of technician terminations under the Labor-Management Act."
  Brief for the Federal Labor Relations Authority;  Supplemental Brief for the Federal Labor Relations Authority Responding to the Amicus-Curiae Brief of the Commonwealth of Puerto Rico

• American Federation of Government Employees, Local 1617, Arthur Celestino, and American Federation of Government Employees, Council Number 214 v. FLRA, No. 03-51264 (5th Cir. 2004) [unpublished decision], reviewing 58 FLRA 63, reconsideration denied, 58 FLRA 183 (2002).

  The Fifth Circuit, per curiam, has affirmed the decision of the District Court for the Western District of Texas dismissing the union's suit for lack of subject matter jurisdiction. The union had sought reversal of an Authority arbitration decision.
  Brief for the Federal Labor Relations Authority

• American Federation of Government Employees, Local 2510 v. FLRA, No. 05-1123 (D.C. Cir. 2006) 
  [unpublished decision],  reviewing 60 FLRA 281 (2004), reconsideration denied, 
  60 FLRA 636 (2005).

  The D.C. Circuit dismissed the union's petition for review for lack of jurisdiction.  The union seeks review of an Authority decision in an arbitration case finding that the amount of attorney fees awarded by an arbitrator was not reasonable, and reducing those fees for failure to exercise billing judgment.
  Brief for the Federal Labor Relations Authority 

• American Federation of Government Employees, Local 4036 v. FLRA, No. 03-1337 (D.C. Cir. 2004) [unpublished decision], reviewing 59 FLRA 3 (2003).

  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.
  Brief for the Federal Labor Relations Authority

• American Federation of Government Employees, National Border Patrol Council, AFL-CIO v. FLRA, 
  No. 05-1268 (D.C. Cir., filed July 15, 2005), reviewing 60 FLRA 943

  The union seeks review of an Authority decision dismissing a ULP complaint alleging that the agency committed a ULP by changing its policy on the type of personally owned handguns employees could use, reducing the number of hours of remedial firearms training provided to employees, and repudiating a Memorandum of Understanding. 
  Brief for the Federal Labor Relations Authority

• American Federation of Government Employees, National Veterans Affairs Council 53 v. FLRA, 
  No. 352 F.3d 433 (D.C. Cir. 2003), reviewing 58 FLRA 8 (2002).

  The D.C. Circuit denied the union’s petition for review. The union sought review of an Authority decision finding nonnegotiable a proposal requiring the agency to allow a union observer at performance-based interviews conducted to fill unit positions. The D.C. Circuit agreed with the Authority that the proposal affected management’s right to "make selections for appointments" under § 7106(a)(2)(c) of the Statute. 
  Brief for the Federal Labor Relations Authority

• American Federation of State, County & Municipal Employees Council 26 v. FLRA, 
  No.395 F.3d 443 (D.C. Cir. 2005), reviewing 59 FLRA 491. 

  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.
  Brief for the Federal Labor Relations Authority

• Arkansas National Guard v. FLRA, Arkansas National Guard v. FLRA, Nos. 99-1563 & 99-1974 
  (8th Cir. 1999) [unpublished decision], reviewing 55 FLRA 63 (1999).

The court dismissed the Guard's petition for review for lack of jurisdiction because the appeal had not been authorized by the Department of Justice nor approved by the Solicitor General. The court left pending the Authority's cross-application for enforcement. 
Brief for the Federal Labor Relations Authority

• Association of Administrative Law Judges, International Federation of Professional and Technical Engineers, AFL-CIO v. FLRA, No. 397 F.3d 957 (D.C. Cir. 2005), reviewing 59 FLRA 646 (2004). 

The D.C. Circuit 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 failing to bargain with the union over the reduction in the number of reserved parking spaces because the impact on employees was de minimis. 
Brief for the Federal Labor Relations Authority

• Association of Civilian Technicians, Inc. v. FLRA, 283 F.3d 339 (D.C. Cir. 2002), reviewing 
  No. 99-2562 (D.D.C. 2001).

  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.   
  Brief for the Federal Labor Relations Authority

• Association of Civilian Technicians, New York State Council v. FLRA, No. 00-1485 
  (D.C. Cir. 2001) [unpublished decision], reviewing 56 FLRA 444 (2000); reconsideration denied, 
  56 FLRA 868 (2000) .

  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.
  Brief for the Federal Labor Relations Authority

• Association of Civilian Technicians, Puerto Rico Army Chapter v. FLRA, 269 F.3d 1112 
  (D.C. Cir. 2001), reviewing 56 FLRA 493 (2000); reconsideration denied, 56 FLRA 807 (2000).

  The D.C. Circuit granted the union's petition for review, vacated the decision and order of the Authority, and remanded to the Authority for further proceedings.  The Authority had found nonnegotiable a provision requiring the agency to reimburse employees for lost personal travel expenses resulting from the cancellation of previously approved leave. The Authority had applied the Travel Expenses Act, 5 U.S.C. § 5701, et seq., in making this determination, however, the court found that the Travel Expenses Act does not prohibit the proposed provision since the Act "governs per diem and reimbursement when an employee is 'traveling on official business.'"  The court remanded with direction to consider whether the expenditures required by the disputed provision are authorized according to the Statute.  
  Brief for the Federal Labor Relations Authority

• Association of Civilian Technicians, Puerto Rico Army Chapter v. FLRA, No. 370 F.3d 1214  
  (D.C. Cir. 2004), reviewing 58 FLRA 318 (2003), reconsideration denied, 59 FLRA 2 (2003).

  The D.C. Circuit granted the union's petition for review and remanded the case to the Authority.  The union provision under review required reimbursement for employees’ out-of-pocket losses resulting from the agency’s cancellation of previously approved leave.  The court determined that the Authority did not address the two issues before it on the original remand; namely, whether the reimbursements constituted official business expenditures authorized by the Statute, and as such were implicitly authorized by the law or (2) an appropriate arrangement under the Statute.  
  Brief for the Federal Labor Relations Authority

• Association of Civilian Technicians, Silver Barons Chapter, et al. v. FLRA, 200 F.3d 590 
  (9th Cir. 2000), reviewing 54 FLRA 595 (1998).

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. 
Brief for the Federal Labor Relations Authority

• Association of Civilian Technicians, Schenectady Chapter v. FLRA, 230 F.3d 377 (D.C. Cir. 2000), reviewing 55 FLRA 925 (1999).

The D.C. Circuit denied the union's petition for review of an Authority decision finding a proposal nonnegotiable because the proposal concerns a military aspect of technician employment. The union's proposal would have governed how the National Guard informs dual-status technicians of their eligibility to volunteer for active duty by taking leave from their civilian posts pursuant to 5 U.S.C. § 6323(d). Section 6323(d) is a special pay status entitling technicians to only their civilian salaries -- and not military pay -- while on leave. The Court gave the FLRA's interpretation "judicial respect" and found that the proposal threatens to interfere with the National Guard's discretion to call technicians into action as it sees fit, pursuant to 10 U.S.C. § 12301. Thus, the court found that the proposal was inconsistent with 10 U.S.C. § 976, which prohibits bargaining over the terms and conditions of military service. 
Brief for the Federal Labor Relations Authority

• Association of Civilian Technicians, Texas Lone Star Chapter 100 and Association of Civilian Technicians, Wisconsin Chapter 26 (Army) v. FLRA,  250 F.3d 778 (D.C. Cir. 2001), reviewing 55 FLRA 1226 (2000); reconsideration denied, 56 FLRA 432 (2000).

  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.
  Brief for the Federal Labor Relations Authority

• Association of Civilian Technicians, Tony Kempenich Memorial Chapter 21 v. FLRA, 
  269 F.3d 1119 (D.C. Cir. 2001), reviewing 56 FLRA 526 (2000); reconsideration denied,  
  56 FLRA 947 (2000).

  The D.C. Circuit denied the union's petition for review of an Authority decision finding nonnegotiable, in part, a provision requiring the agency to grant official time to union officials for lobbying Congress on pending or desired legislation. The court agreed with the Authority that the provision was contrary to law and therefore nonnegotiable.  Thus, the court held that § 8012 of the Department of Defense Appropriations Act, Pub. L. No. 105-262, 112 Stat. 2279, 2299 (1998), prohibits the "provision because . . . official time may only be granted to the extent that it is consistent with all 'applicable laws and regulations.'"  269 F.3d at1122 (quoting NFFE Local 2015, 41 F.L.R.A. 1158, 1185 (1991)).
  Brief for the Federal Labor Relations Authority

• Association of Civilian Technicians, Wichita Air Capitol Chapter v. FLRA, No. 353 F.3d 46  
  (D.C. Cir. 2004), reviewing 57 FLRA 939 (2002) , reconsideration denied, 58 FLRA 310 (2003). 

  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.
  Brief for the Federal Labor Relations Authority

• Association of Civilian Technicians, Wichita Air Capitol Chapter v. FLRA, No. 360 F.3d 195  
  (D.C. Cir. 2004), reviewing 58 FLRA 28 (2002) , reconsideration denied, 58 FLRA 483 (2003) . 

  The D.C. Circuit granted the union petition for review, vacated and remanded the Authority=s decision.  The union sought review of an Authority decision finding nonnegotiable a proposal requiring the agency, among other things, to negotiate over the assignment of military training duties to National Guard technicians who serve as both civilian employees and military members of the Guard.  Since the proposal  concerned training duties assigned to technicians while serving in their civilian status, not while on full-time Guard duty status, the court found that bargaining on it did violate the prohibitions set forth in 10 U.S.C. ' 976.  Based on the statute=s text, its legislative history, and  established cannons of statutory construction, the court agreed with the union, that ' 976's prohibition did not limit bargaining over terms or conditions of National Guard service in all circumstances, but only when bargaining on those matters relates to members who are serving on full-time Guard duty.
  Brief for the Federal Labor Relations Authority

• Association of Civilian Technicians, Wichita Air Capitol Chapter v. FLRA, No. 05-1192 
  (D.C. Cir. 2006) [unpublished decision], reviewing on remand  60 FLRA 342 (2004); 
  reconsideration denied, 60 FLRA 835 (2005)

  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.   
  Brief for the Federal Labor Relations Authority

• Stuart E. Bernsen v. FLRA, 203 F.3d 51 (D.C. Cir. Mar. 19, 1999) (table), 
  reviewing 53 FLRA 1541 (1998).

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. 
Brief for the Federal Labor Relations Authority

• Department of the Air Force, 315th Airlift Wing, Charleston Air Force Base, Charleston, South Carolina v. FLRA, 294 F.3d 192 (D.C. Cir. 2001), reviewing  57 FLRA 80 (2001) .

  The D.C. Circuit granted the agency's petition for review, reversed the Authority's decision and order, and remanded the case with direction to dismiss the unfair labor practice (ULP) complaint. The Authority had held that the agency committed a ULP by suspending a union representative for activity that was not “flagrant misconduct” and was therefore protected by § 7116(a)(1) and (2). The court found, instead, that the conduct was not protected activity under the federal labor statute.
  Brief for the Federal Labor Relations Authority

• Eisinger v. FLRA, 218 F.3d 1097 (9th Cir. 2000), reviewing 54 FLRA 562 (1998).

  The Ninth Circuit reversed an Authority decision dismissing an individual's unit clarification petition filed pursuant to section 7111 of the Statute. Citing 5 C.F.R. § 2422.2(c), the Authority had determined that only agencies and unions could file unit clarification petitions and that, therefore, the individual lacked standing to file such a petition. Ruling that it had jurisdiction under section 7123 of the Statute to review Authority decisions on petitions filed under section 7111, the court disagreed and reversed the Authority's determination.  
  Brief for the Federal Labor Relations Authority

• FLRA v. Puerto Rico National Guard, Puerto Rico Air National Guard, San Juan, Puerto Rico, No. 99-1293 (1st Cir. 2000)[unpublished decision], enforcing Case No. AT-CA-70505 (1998).

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." 
Brief for the Federal Labor Relations Authority

• FLRA v. U.S. Department of Justice, 125 F.3d 106 (2d Cir. Oct. 7, 1999), enforcing Case Nos. BN-CA-50149, BN-CA-50156, BN-CA-50698, BN-CA-50700, and BN-CA-50701.

On remand from the Supreme Court (119 S. Ct. 2387 (1999)), the Second Circuit enforced the Authority's order in the above-referenced cases. The Authority found that the agency committed ULPs when it denied an exclusive representative and certain unit employees their section 7114(a)(2)(B) representation rights during Office of the Inspector General (OIG) investigations. The Supreme Court had vacated an earlier Second Circuit decision that denied the Authority's application for enforcement, instructing the court to reconsider its decision in light of NASA v. FLRA, 527 U.S. 229 (1999). In NASA v. FLRA, the Supreme Court affirmed the Authority's decision that an OIG investigator is a "representative of the agency" when examining a bargaining unit employee who reasonably fears that discipline might result from the examination. The Second Circuit reconsidered its earlier position and granted the Authority's application for enforcement.
Petitioner's Petition for Rehearing with Suggestion for Rehearing In Banc; Petition for a Writ of Certiorari to the United States Court of Appeals for the Second Circuit

• FLRA v. U.S. Department of Justice, Federal Bureau of Prisons, Federal Correctional Institution, Forrest City, Arkansas v. FLRA,  395 F.3d 845 (8th Cir. 2005) enforcing 57 FLRA 808 (2002).

The court granted, in part, the Authority's application for enforcement of its order, set aside a portion of the Authority's order, and remanded the matter for further proceedings.  The FLRA sought enforcement of a decision finding an ULP for the agency's refusal to provide the union with certain documents relating to the discipline of a unit employee.
Brief for the Federal Labor Relations Authority; Reply Brief for the Federal Labor Relations Authority.

• Georgia State Chapter, Association of Civilian Technicians v. FLRA, 184 F.3d 889 (D.C. Cir. 1999), reviewing 54 FLRA 654 (1998).

The D.C. Circuit denied the union's petition for review of an Authority decision dismissing a ULP complaint. The court found that the union had failed to raise to the Authority the arguments that it was making to the court and that, therefore, the union's objections were barred by section 7123(c) of the Statute, which prohibits a court from considering objections not first raised to the Authority unless the failure to do so is excused by "extraordinary circumstances." The court rejected the union's argument that its failure should be excused because there had been simultaneous briefing in the case and the union could not anticipate the agency's arguments. The court noted that the union did not seek to file a reply brief with the Authority nor did it request reconsideration of the Authority's decision. 
Brief for the Federal Labor Relations Authority

• Granite State Chapter, Association of Civilian Technicians v. FLRA, 173 F.3d 25 (1st Cir. 1999), reviewing 54 FLRA 301 (1998).

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. 
Brief for the Federal Labor Relations Authority

• Luke Air Force Base, Arizona v. FLRA, 208 F.3d 221 (9th Cir. 1999)(table), cert. denied, 121 S.Ct. 60 (2000), reviewing 54 FLRA 716 (1998).

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). 
Brief for the Federal Labor Relations Authority; Respondent's Petition For Rehearing and Suggestion For Rehearing En Banc; Petition For a Writ of Certiorari To The United States Court of Appeals For The Ninth Circuit

• Major General James H. Lipscomb, III, et al. v. FLRA, 333 F.3d 611 (5th Cir. 2003), reviewing 
  200 F. Supp 2d 650 (S.D. Miss. 2001).

  The Fifth Circuit affirmed the decision of the United States Southern District Court for Mississippi holding that the Mississippi Army National Guard is subject to the Authority's jurisdiction.  The Mississippi State Guard appealed a district court decision dismissing their complaint.  In the district court proceeding, the Guard sought to enjoin an election directed by the Authority in a unit of dual-status technicians.  The district 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. 
  Brief for the Federal Labor Relations Authority

• NASA v. FLRA, 527 U.S. 229 (1999).

The Supreme Court affirmed the Authority's (50 FLRA 601 (1995)) and the Eleventh Circuit's decisions (FLRA v National Aeronautics and Space Administration, Washington, D.C., 120 F.3d 1208 (11th Cir. 1997)) that an Office of the Inspector General (OIG) investigator is a "representative of the agency" when examining a bargaining unit employee who reasonably fears that discipline might result from the examination. Relying on the language of the Statute and the Authority's interpretation in 50 FLRA 601, the court rejected NASA's argument that "representative" is limited to the entity that collectively bargains with the union. The court also held that the Authority's decision is consistent with the Inspector General Act, which provides that an agency's OIG investigators are "employed by, act on behalf of, and operate for the benefit of" that agency.  
Brief for the Federal Labor Relations Authority

• National Air Traffic Controllers Association, AFL-CIO and Professional Airways Systems Specialist, AFL-CIO v. FSIP and FLRA, No. 05-5076 (D.C. Cir. 2006).                                                                          

The D.C. Circuit affirmed the D.C. District Court decision dismissing the unions' complaint. In the district court proceeding, the unions sought declaratory and injunctive relief against the FSIP, challenging FSIP decisions declining to assert jurisdiction over certain bargaining impasses with the FAA concerning employee compensation. (NATCA and PASS v. FSIP and FLRA, No. 1:04CV00138 
(D.D.C. Cir. Feb. 22, 2005).   
Brief for the Federal Labor Relations Authority

• National Association of Agriculture Employees v. FLRA, No. 06-71671 (9th Cir., filed March 31, 2006), reviewing 61 FLRA 485.

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

• National Association of Air Traffic Specialists v. FLRA, No. 03-15467-CC (11th Cir. 2005), [unpublished decision], reviewing 59 FLRA 261 (2003).

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.  
Brief for the Federal Labor Relations Authority

• National Association of Government Employees, Local R5-136 v. FLRA, No. 363 F.3d 468  
  (D.C. Cir. 2004), reviewing 58 FLRA 432 (2003).

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

• National Federation of Federal Employees v. U.S. Department of the Interior, 526 U.S. 86 (1999).

The Supreme Court remanded the 4th Circuit's decision in United States Dep't of the Interior v. FLRA, 132 F.3d 157 (4th Cir. 1997), in which the 4th Circuit held that the Agency had no obligation to bargain endterm over a collective bargaining agreement provision to permit negotiations over Union-initiated midterm proposals. Regarding the issue of midterm bargaining, the Supreme Court concluded that the Authority's interpretation of the Statute is entitled to deference and vacated the Fourth Circuit's decision that an agency is not obligated to bargain over a proposal, offered during term negotiations, that would require it to engage in union-initiated midterm bargaining. The court rejected the Fourth Circuit's premise that the Statute imposes no obligation on Federal agencies to bargain midterm and held that the Statute was "sufficiently ambiguous" as to require deference to the Authority's interpretation. The court stated that it was up to the Authority to determine "whether, when, where, and what sort of midterm bargaining is required." The court remanded the case to the Fourth Circuit, which, in turn, remanded the case to the Authority for proceedings consistent with the opinion of the Supreme Court. 
Brief for the Federal Labor Relations Authority  

• National Federation of Federal Employees, FD-1, IAMAW, Local 1442 v. FLRA, 
  No. 369 F.3d 548, (D.C. Cir. 2004), reviewing 58 FLRA 685( 2003).

The D.C. Circuit granted the union's petition for review and remanded the case to the Authority for further proceedings.  The Authority found that the agency did not commit a ULP by closing the School Age Services child care program without completing bargaining since the Union waived its right to bargain on the closure when it did not submit a timely bargaining request in accordance with the parties’ agreement.
Brief for the Federal Labor Relations Authority  

• National Federation of Federal Employees, FD-1, IAMAW, Locals 951 and 2152 v. FLRA, 
  412 F.3d 119 (D.C. Cir. 2005), reviewing 59 FLRA 951.

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. 
Brief for the Federal Labor Relations Authority  

• National Treasury Employees Union v. FLRA, No. 04-1433 (D.C. Cir. 2006), reviewing 60 FLRA 367.

The D.C. Circuit granted the union's petition for review, remanded in part and reversed in part the Authority's decision and order. The union sought review of an Authority decision finding nonnegotiable, in whole or in part, proposals requiring the agency to provide overnight storage for employees' authorized firearms, permitting employees carrying authorized firearms to make stops between residences and work locations, and expediting resolution of firearms issues. 
Brief for the Federal Labor Relations Authority  

• National Treasury Employees Union v. FLRA, 418 F.3d 1068 (9th Cir. 2005), 
  reviewing 59 FLRA 119 (2003)

The Ninth Circuit denied the union’s petition seeking review of an Authority decision that affirmed an agency’s disapproval of a collective bargaining agreement provision.  The provision would have provided agency employees with  additional compensation for time spent commuting from home to a temporary work site within the employee’s official duty station.  The court agreed with the Authority’s conclusion that the provision conflicted with an OPM government-wide regulation that excludes compensation for normal home to work travel.  The court rejected the union’s argument that the provision was not in conflict with OPM’s regulation because the regulation sets only minimum entitlements under the Fair Labor Standards Act (FLSA) that may be modified by negotiated agreements. 
Brief for the Federal Labor Relations Authority  

• National Treasury Employees Union v. FLRA, No. 399 F.3d 334 (D.C. Cir. 2005), 
  reviewing 59 FLRA 217.

Union seeks review of Authority decision finding negotiable only at the election of the agency proposals which require the agency to engage in mid-term bargaining, either over agency-initiated changes or over union requests for mid-term bargaining unless the subject matter of bargaining is specifically addressed in the parties' agreement or MOU.  
Brief for the Federal Labor Relations Authority  

• National Treasury Employees Union v. FLRA, 414 F.3d 50 (D.C. Cir. 2005), 
  reviewing  59 FLRA 703.

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.    
Brief for the Federal Labor Relations Authority  

• National Treasury Employees Union v. FLRA, No. 392 F.3d 498 (D.C. Cir. 2004), 
  reviewing 59 FLRA 282 (2003). 

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.  
Brief for the Federal Labor Relations Authority  

• National Treasury Employees Union v. FLRA, No. 04-1157 (D.C. Cir. 2005), 
  reviewing 59 FLRA 749.

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. 
Brief for the Federal Labor Relations Authority  

• National Treasury Employees Union v. FLRA, 435 F.3d 1049 (9th Cir. 2006), 
  reviewing 59 FLRA 815

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.  
Brief for the Federal Labor Relations Authority  

• National Treasury Employees Union, Chapter 161 v. FLRA, No. 02-1153 (D.C. Cir. 2003) [unpublished decision], reviewing 57 FLRA 718 (2002).

The D.C. Circuit denied, per curiam, the union petition for review of an Authority decision setting aside an arbitration award.  The arbitrator had found that the agency committed a ULP and a contract violation by changing a past practice without providing the union an opportunity to bargain.  The court agreed with the Authority that the union had received adequate notice that the agency was changing its overtime policy. 
Brief for the Federal Labor Relations Authority

• National Treasury Employees Union v. FLRA, No. 05-1230 (D.C. Cir., filed July 1, 2005), 
  reviewing 60 FLRA 572 (2005); reconsideration denied, 60 FLRA 893 (2005) 

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

• National Treasury Employees Union v. FLRA, No. 05-1266 (D.C. Cir., filed July 15, 2005), 
  reviewing  60 FLRA 922

The union seeks 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 .  
Brief for the Federal Labor Relations Authority 

 

• Patent Office Professional Association v. FLRA, No. 01-1271 (D.C. Cir. 2002) [unpublished decision]

  The D.C. Circuit dismissed the union's petition for review of an Authority decision and order finding that the agency committed unfair labor practices by refusing to bargain over various union-initiated proposals.  The union's petition for review contested only the Authority's statement, in dicta, that no comprehensive collective bargaining agreement existed between the union and the agency.  The court held that the union was not "aggrieved" within the meaning of section 7123(a) of the Statute because the Authority's order provided the union with "all of the substantive relief that was necessary to address the agency's unlawful refusal to bargain."  Accordingly, the court found the union did not have standing to file a petition for review and dismissed the case for lack of jurisdiction.   57 FLRA 185 (2001)
  Brief for the Federal Labor Relations Authority

• Patent Office Professional Association v. FLRA, 128 F.3d 751 (D.C. Cir. 1997),  
  cert. denied, 523 U.S. 1006 (1998).

The D.C. Circuit dismissed the union's petition for review of a decision of the FLRA General Counsel declining to issue a ULP complaint, on the ground that the court lacked jurisdiction under section 7123 of the Statute. In its decision, the D.C. Circuit reaffirmed its ruling in Turgeon v. FLRA, 677 F.2d 937 
(D.C. Cir. 1982), where the court flatly declared that it had no jurisdiction to review decisions by the FLRA General Counsel declining to issue ULP complaints because such decisions do not constitute final agency orders under section 7123. To avoid any "lingering confusion," the court indicated that the Supreme Court's intervening decision in Heckler v. Chaney, 470 U.S. 821 (1985), did not change the law of the D.C. Circuit regarding the nonreviewability of the FLRA General Counsel's decisions. 
Brief for the Federal Labor Relations Authority

• Patent Office Professional Association v. FLRA, No. 05-1173 (D.C. Cir., filed May 26, 2005), 
  reviewing  60 FLRA 839  

The union seeks review of an Authority decision setting aside an arbitrator's award that found that the agency had violated the parties' agreement and that directed the agency to attempt, through discussions with the union, to establish an alternative to a special pay rate increase that had been requested from, but denied by, OPM.  
Brief for the Federal Labor Relations Authority           

• David F. Power v. FLRA, 146 F.3d 995 (D.C. Cir. 1998), reviewing 52 FLRA 1390 (1997)

The D.C. Circuit denied an individual's petition for review of an Authority decision dismissing a ULP complaint alleging that he had been terminated in retaliation for exercising rights protected by the Statute. Agreeing with the Authority, the court held that Power's termination resulted not from anti-union animus but from his insubordinate conduct. The court also found that Power's claim of impermissible bias on the part of an Authority member was both meritless and precluded under section 7123(c). 
Brief for the Federal Labor Relations Authority

• Social Security Administration v. FLRA, 201 F.3d 465 (D.C. Cir. 2000), reviewing 55 FLRA 246 (1999).  

  The D.C. Circuit granted the agency's petition for review and reversed the Authority's order that an Agency pay post-judgment interest on liquidated damages awarded employees through arbitration under the Fair Lagood morbor Standards Act. The Authority had ruled that such interest was permissible under the Back Pay Act. The D.C. Circuit disagreed, holding that liquidated damages are not "pay, allowances, or differentials" within the meaning of the Act. 
  Brief for the Federal Labor Relations Authority

• Tinker Air Force Base, Oklahoma City Air Logistics Center, Oklahoma City, Oklahoma v. FLRA,
  321 F.3d 1242 (10th Cir. 2002), reviewing DA-CA-90328.

  The Tenth Circuit dismissed the agency’s petition for review of an unexcepted-to-ALJ decision for lack of subject matter jurisdiction and enforced the Authority’s order adopting the ALJ decision.  The Authority found a ULP for an agency's failure to provide the union with notice and an opportunity to represent bargaining unit employees at a formal discussion concerning the investigation of formal EEO complaints. The agency's exceptions to the ALJ's recommended decision were rejected as untimely filed. 
  Brief for the Federal Labor Relations Authority
  Cross Reply Brief for the Federal Labor Relations Authority

• U.S. Department of the Interior, Bureau of Reclamation, Yuma Area Office v. FLRA, 279 F.3d 762 
  (9th Cir. 2002), reviewing 56 FLRA 372 (2000) .

  The Ninth Circuit reversed and remanded an FLRA decision ordering the agency to bargain in good faith over a proposal on Sunday premium pay. Although employees had been paid Sunday premium pay prior to August 19, 1972, the agency argued there was no obligation to negotiate on the payment since it was not negotiated by the parties prior to that time, but rather made under the mistaken belief they were required by law. Rejecting this argument, the FLRA found that the listing of Sunday premium pay in the parties’ agreement was evidence that they had engaged in the negotiation process on this matter prior to August 19, 1972, and therefore according to § 704 of the Civil Service Reform Act of 1978, it was still negotiable. The Ninth Circuit, however, disagreed finding the actual process of negotiating would have meant the parties had to engage in some discussion prior to August 19, 1972 on the particular terms of Sunday premium or whether to pay it in order to meet the requirements of § 704 and, there was no evidence of that here. 
  Brief for the Federal Labor Relations Authority

• U.S. Department of Justice, Immigration and Naturalization Service, Northern Region, Twin Cities, Minnesota v. FLRA, 144 F.3d 90 (D.C. Cir. 1998), reviewing 51 FLRA 1467 (1996) and 52 FLRA 1323 (1997).

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 the union was acting as an "exclusive representative" under the Statute, notwithstanding the fact that the union had chosen to represent an employee at the oral reply stage of the disciplinary process. 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. 
Brief for the Federal Labor Relations Authority

• U.S. Department of Justice, Washington, D.C. and U.S. Department of Justice, Office of the Inspector General, Washington, D.C. v. FLRA,  266 F.3d 778 (D.C. Cir. 2001), 
  reviewing 56 FLRA 556 (2000).

  The D.C. Circuit denied the agency's and its Inspector General's petition for review of an Authority decision finding an unfair labor practice when Office of the Inspector General (OIG) agents denied an employee's request for union representation in a criminal investigation.  The union representing the employee filed an unfair labor practice charge, claiming that the agents' denial of the employee's request to have union representation was in violation of 
  5 U.S.C. 7114(a)(2)(B), which requires an agency to give an employee the opportunity to have a union representative at an interrogation under certain circumstances.  The FLRA found that the OIG agents had violated the Statute by not granting the employee's request for representation based on the Supreme Court's holding in NASA v. FLRA, 527 U.S. 229 (1999) (NASA),  that OIG agents are "representatives" of their respective agencies.  The D.C. Circuit agreed that the NASA decision controlled, finding no distinction in NASA between administrative and criminal investigations with regard to whether OIG agents are "representatives" of agencies. 
  Brief for the Federal Labor Relations Authority

• U.S. Department of Transportation, Federal Aviation Administration, Washington, D.C. v. FLRA, 
  145 F.3d 1425 (D.C. Cir. 1998), reviewing 53 FLRA 139 (1997).

The D.C. Circuit granted the agency's petition for review, denied the Authority's application for enforcement, and remanded to the Authority for further proceedings. The Authority had found negotiable a proposal that Air Traffic Assistants be eligible for "familiarization" flights on commercial airlines. The Authority stated that the agency's "bare assertion that the proposal conflicts with a Government-wide regulation . . . did not establish that the proposal is outside the duty to bargain." The Authority found that, by failing to offer specific arguments and regulations, the agency did not carry its burden of creating a record upon which the Authority could make a negotiability determination. The court held that the Authority should have addressed the substance of the agency's objection because the agency's "position and authority are easily understood." The court also noted that if the Authority found the agency's submission "too oblique," it could have requested additional briefing or held a hearing to amplify the Agency's argument. 
Brief for the Federal Labor Relations Authority

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