American Federation of Government Emp., Local 1923 v. Federal Labor Relations Authority, 81-1583
| Decision Date | 13 April 1982 |
| Docket Number | No. 81-1583,81-1583 |
| Citation | 675 F.2d 612 |
| Parties | 110 L.R.R.M. (BNA) 2295 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1923, Petitioner, v. FEDERAL LABOR RELATIONS AUTHORITY, Respondent. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Charles Lee Nutt, Baltimore, Md. (Clements & Nutt, Baltimore, Md., on brief), for petitioner.
Ellen Stern, Mary Elizabeth Medaglia, Associate Sol., Washington, D. C. (Robert J. Freehling, Sol., Washington, D. C., on brief), for respondent.
Before WINTER, Chief Judge, HAYNSWORTH, Senior Circuit Judge, and HALL, Circuit Judge.
The union, the exclusive bargaining representative of a unit of government employees, seeks review of a decision of the Federal Labor Relations Authority. The Authority's decision modified an award of an arbitrator by restricting the extent to which the governmental unit (Social Security Administration) could negotiate with the union with reference to performance standards. Review was sought under the provisions of 5 U.S.C. § 7123(a). We conclude that we lack jurisdiction to entertain the petition and so we dismiss it.
A bargaining agreement which existed in 1977 between the union and the governmental unit required them to meet and confer on modifications to the performance appraisal system. In 1978 Congress enacted the Civil Service Reform Act, 1 which in Title II, 5 U.S.C. § 4302, required every agency to develop a performance appraisal system which would provide periodic appraisal of employee job performance to be used as a basis for training, reassignment, promotion, etc. When the Social Security Administration made known that, pursuant to regulations adopted by the Office of Personnel Management, it intended to establish performance standards and to identify critical elements and that these actions would not be negotiable, the union invoked the grievance procedure established by the bargaining agreement and submitted the issue of the negotiability of development of a new performance appraisal system to binding arbitration.
The arbitrator found that the grievance was arbitrable and, under the terms and provisions of the bargaining agreement, the parties were required to bargain with respect to the establishment of a new performance appraisal plan. The arbitrator did not consider the effect of the 1978 legislation. Because Social Security thought that the arbitrator's decision violated 5 U.S.C. § 4302(a), which provides that each agency should establish a performance appraisal system, it sought review by the Authority pursuant to 5 U.S.C. § 7122(a). The Authority sustained Social Security's position. Based upon its earlier decisions, it ruled that negotiation with respect to the establishment of a performance appraisal system and the identification of critical elements would be illegal, but that negotiation on various other aspects of performance appraisal systems was legally permissible. It therefore modified the arbitrator's award to limit the duty to bargain to those matters permitted by law. It is from this decision of the Authority that the present petition for review is filed.
Our jurisdiction to consider petitions for review is contained in 5 U.S.C. § 7123(a). That statute gives any person "aggrieved by any final order of the Authority" the right to invoke judicial review by a court of appeals. An exception to the grant of general jurisdiction is with respect to
.... an order under-
(1) section 7122 of this title (involving an award by an arbitrator), unless the order involves an unfair labor practice under section 7118 2 of this title ...
There can be no doubt that the order sought to be...
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National Ass'n of Government Employees v. FLRA
...F.2d at 492. The Fourth Circuit Court of Appeals has reached the same conclusion. In American Federation of Government Employees Local 1923 v. Federal Labor Relations Authority, 675 F.2d 612 (4th Cir.1982), the Union sought judicial review of a decision by the Authority which modified an ar......
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...Sec. 7123(a)(1) permits no judicial review of an arbitrator's decision unless it involves an unfair labor practice. AFGE, Local 1923 v. FLRA, 675 F.2d 612 (4th Cir.1982). A violation of the circular would appear not to fall within the unfair labor practices listed in Sec. 7116(a). Thus, des......
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...we turn to an examination of these cases. D The first court to address the issue was the Fourth Circuit in AFGE, Local 1923 v. FLRA, 675 F.2d 612 (4th Cir.1982). In that case, the collective bargaining agreement between the union and the agency, the Social Security Administration, provided ......