712 F.2d 669 (D.C. Cir. 1983), 82-2094, National Treasury Employees Union v. Federal Labor Relations Authority

Docket Nº:82-2094.
Citation:712 F.2d 669
Case Date:July 12, 1983
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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712 F.2d 669 (D.C. Cir. 1983)




No. 82-2094.

United States Court of Appeals, District of Columbia Circuit

July 12, 1983

Argued May 26, 1983.

Gregory O'Duden, Washington, D.C., with whom Robert M. Tobias, John F. Bufe, and Lois G. Williams, Washington, D.C., were on brief for petitioner.

Pamela P. Johnson, Attorney, Federal Labor Relations Authority, Washington, D.C., with whom Steven H. Svartz, Acting

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Sol. Federal Labor Relations Authority, Washington, D.C., was on brief for respondent.

Before TAMM and GINSBURG, Circuit Judges, and BAZELON, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge GINSBURG.

GINSBURG, Circuit Judge:

This case centrally involves the finality requirement for purposes of appellate review. Final action for appellate review purposes does not necessarily coincide with executed or enforced action. Rather, the finality requirement is met when the initial decision-maker's action becomes firm and stable, the definitive "last word" of that arbiter on the matter at hand. A final order, whether administrative or judicial, may be stayed pending appeal. The stay prevents immediate execution of the final order, but it does not affect the order's amenability to immediate appeal. 1 In the matter before us, an order's finality for purposes of appellate review has been confused with the order's amenability to immediate execution or enforcement.

The National Treasury Employees Union (NTEU or Union) seeks our review of a decision of the Federal Labor Relations Authority (FLRA or Authority) declaring nonnegotiable a Union proposal made during NTEU's collective bargaining negotiations with the Department of Treasury, United States Customs Service (Customs or Agency). The Union proposed a clause that would stay execution of adverse personnel actions pending review through either of the two administrative channels to which employees have recourse: appeal through the collective bargaining agreement's grievance and arbitration procedure, or appeal to the Merit Systems Protection Board (MSPB). 2 The FLRA acknowledged that a proposal limited to stays pending appeal through the grievance mechanism would be negotiable. However, the Authority held the entire stay proposal nonnegotiable because it encompassed stays pending appeal to the MSPB.

The Authority distinguished the two appeals channels, grievance and arbitration on the one hand, MSPB review on the other, on this reasoning: a stay would not impede resort to the grievance machinery, but it would block recourse to the MSPB. The MSPB, the Authority reasoned, entertains appeals only from final agency actions; an agency action becomes final, the FLRA read the MSPB's regulations and decisions to say, on its "effective date." An action lacks an effective date, according to the FLRA, when it is stayed. Therefore, the FLRA concluded, stay of an adverse action pending MSPB review would have this anomalous result: instead of merely deferring execution of the adverse action, the stay would strip the MSPB of appellate jurisdiction, and thus permanently bar or forever suspend the adverse action.

We conclude that the FLRA, distracted by imprecise language in some MSPB opinions, failed to differentiate between two distinct meanings or uses of the term "final" action or decision. An agency's order becomes "final" or "effective" for

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appellate review purposes when the agency arrives at a terminal, complete resolution of the case before it. An order lacks finality in this sense while it remains tentative, provisional, or contingent, subject to recall, revision, or reconsideration by the issuing agency. The word "final" is sometimes employed, however, to describe a dispositive order that has become "final by appeal or expiration of time for appeal." 3 Stays of enforcement until an order becomes final in this latter sense are commonplace; indeed, in some settings, they are automatic. 4 Such stays, of course, do not impede appeals from the stayed dispositive order; their sole purpose is to preserve the status quo while an appeal is in the offing or in progress.

NTEU proposes that Customs bargain over stays of the Agency's final adverse actions pending MSPB review. Such dispositive actions, even if Customs consents to stay their enforcement pending appeal, remain "final" or "effective" in the only sense here relevant--they are firm actions, conclusively taken, subject to recall or revision only if reversed or modified in prescribed review procedures. The FLRA, we note, may not direct Customs to agree to the Union's stay proposal or to make any concession to NTEU's request; 5 but the Authority erred in holding that the proposal was nonnegotiable because it would block MSPB review and therefore result in permanent deferral of the Agency's adverse action. The stays at issue, which Customs remains free to reject so long as it bargains about them in good faith, would not affect the MSPB's appellate jurisdiction; they would simply delay execution of Customs' final, dispositive orders pending the outcome of administrative review. 6


During its nationwide, master collective bargaining agreement negotiations with

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Customs, NTEU proposed the following clause: 7

The employer shall stay the effect of any decision to take [disciplinary action, adverse action, or action based upon unacceptable performance] against any employee pending the outcome of any administrative appeal through the grievance and arbitration procedure, or any appeal to the MSPB, as appropriate.

Customs ultimately declined to bargain over this stay proposal, whereupon the Union petitioned the FLRA to decide whether the clause was negotiable. J.A. 1-2. 8

Before the FLRA, Customs argued that the proposal was incompatible with the section of the Federal Service Labor-Management Relations Act 9 that excepts certain "management rights" from an agency's encompassing obligation to bargain. The "management rights" section, 5 U.S.C. § 7106, provides in relevant part:

(a) Subject to subsection (b) of this section, nothing in this chapter shall affect the authority of any management official of any agency--


(2) in accordance with applicable laws--

(A) to hire, assign, direct, layoff, and retain employees in the agency, or to suspend, remove, reduce in grade or pay, or take other disciplinary action against such employees;


(b) Nothing in this section shall preclude any agency and any labor organization from negotiating--


(2) procedures which management officials of the agency will observe in exercising any authority under this section;


The FLRA held the clause NTEU proposed non-negotiable on the ground that it would interfere impermissibly with the management rights specified in 5 U.S.C. § 7106(a)(2)(A). J.A. 17-18.

While "management rights" themselves are non-negotiable, bargaining is nonetheless authorized on "procedures which ... the agency will observe in exercising [its nonnegotiable prerogatives]." 5 U.S.C. § 7106(b)(2). Our review in cases involving the problematic distinction between nonnegotiable management rights under 5 U.S.C. § 7106(a), and negotiable procedures for exercising those management rights under 5 U.S.C. § 7106(b), is guided by this court's pathmarking decision in Department of Defense v. FLRA, 659 F.2d 1140 (D.C.Cir.1981), cert. denied, 455 U.S. 945, 102 S.Ct. 1443, 71 L.Ed.2d 658 (1982). One portion of the Department of Defense opinion ( Dix-McGuire Exchange, 659 F.2d at 1152-58) involved a union proposal to stay the removal or suspension of an employee pending exhaustion of the grievance procedure included in the collective bargaining contract. The FLRA had held the proposal negotiable, and we affirmed.

The court pointed out in Dix-McGuire Exchange that the union's proposal did not address the substantive criteria governing removal or suspension. Instead, it addressed a timing question properly characterized as "procedural": the issue was when, not whether, the agency could execute its management right to remove or

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suspend an employee. The proposal, if adopted, would not "prevent agency...

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