American Federation v. Federal Labor, 05-1123.

• Decision Date: 27 June 2006
• Docket Number: No. 05-1123.,05-1123.
• Citation: 453 F.3d 500
• Parties: AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2510, Petitioner, v. FEDERAL LABOR RELATIONS AUTHORITY, Respondent.
• Court: U.S. Court of Appeals — District of Columbia Circuit

453 F.3d 500

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2510, Petitioner, v. FEDERAL LABOR RELATIONS AUTHORITY, Respondent.

No. 05-1123.

United States Court of Appeals, District of Columbia Circuit.

Argued February 23, 2006.

Decided June 27, 2006.

Stuart A. Kirsch argued the cause for petitioner. With him on the briefs was Mark D. Roth.

William E. Persina, Attorney, Federal Labor Relations Authority, argued the cause for respondent. With him on the brief was William R. Tobey, Acting Solicitor. James F. Blandford, Attorney, entered an appearance.

Before: GINSBURG, Chief Judge, and ROGERS, Circuit Judge, and EDWARDS, Senior Circuit Judge.

GINSBURG, Chief Judge.

Local 2510 of the American Federation of Government Employees petitions for review of an order of the Federal Labor Relations Authority reducing the attorney's fee an arbitrator awarded the Union for representing a member in a grievance arbitration. We do not have jurisdiction to review a final order of the Authority "involving an award by an arbitrator" unless "the order involves an unfair labor practice under section [7116]" of Title V,^* 5 U.S.C. § 7123(a)(1), as the Union argues this order does. In the alternative the Union argues we have jurisdiction pursuant to Leedom v. Kyne, 358 U.S. 184, 79 S.Ct. 180, 3 L.Ed.2d 210 (1958). We reject the first argument because the Authority's order addresses only the attorney's fee, and therefore does not involve an unfair labor practice; we reject the second argument because Leedom v. Kyne implicates the jurisdiction of the district court, not that of the court of appeals. Therefore, we dismiss the Union's petition for lack of jurisdiction.

I. Background

William Roach, an accounting technician for the Defense Finance and Accounting Service (DFAS) of the United States Department of Defense and president of Local 2510, was suspended on the grounds that, by failing to return promptly to work after attending an out-of-town union meeting, he had been absent (for four hours) without leave and, in a conversation with his supervisor regarding his absence, had shown a "lack of candor." The Union filed a grievance on behalf of Mr. Roach, challenging the suspension and, when the grievance was denied, took the matter to arbitration. The arbitrator described the grievance as follows:

[A] union grievance was filed protesting Roach's suspension; the action barring him from the Charleston Operating Location and management's refusal to furnish requested information as required by 5 U.S.C. § 7114(b)(4) and Article 4 of the master agreement . . . . Management's conduct was protested as a separate unfair labor practice as well as a contract grievance.

The arbitrator held the discipline was imposed without just cause and ordered the DFAS to rescind the suspension and give Roach back pay. He also ordered the DFAS to "cease and desist" from two practices he held were violations both of law and of the collective bargaining agreement between the Union and the DFAS. First, the arbitrator held the employer's refusal to permit Roach "access to the facility to perform union duties during the time he was serving his suspension" was an unfair labor practice within the meaning of 5 U.S.C. § 7116 and a violation of 5 U.S.C. § 7102 (right to assist labor organization). Second, he held the employer's refusal to provide the Union with certain information and documents the Union needed in order to assess the strength of Roach's grievance was also a violation of § 7102, Article 4 of the master labor agreement, and of 5 U.S.C. § 7114(b)(4) (duty to furnish data maintained by the agency).

In a later opinion, the arbitrator concluded the Union was entitled to reimbursement of its attorney's fee pursuant to the Back Pay Act, 5 U.S.C. § 5596. He awarded a fee of $74,700, at a rate of $225 per hour for 332 hours of work, and $1,978.48 in expenses.

The DFAS filed with the Authority various exceptions to the fee award but did not challenge the arbitrator's decision on the merits. See id. § 7122. The employer argued: (1) the arbitrator lacked authority under the collective bargaining agreement to award fees; (2) the fee awarded was unreasonable; (3) the award was not in the interest of justice; and (4) the award was not supported by a reasoned decision.

The Authority rejected the first exception because the DFAS had not raised the argument before the arbitrator; it rejected the third and fourth exceptions on their merits. The Authority agreed the fee award was excessive, however, and it reduced by more than half the number of compensable hours (to 148.5) and hence the amount of the award (to $33,412.50). Specifically, the Authority reduced the number of hours for research and preparation of a brief to 31 from the 77 claimed, on the ground that the hours claimed were excessive in light of the attorney's "extensive experience in labor and employment law"; reduced the number of hours for the "preparation of time charges and calculating fees" to nine from the 31 claimed because that work was "mostly clerical"; and discounted the remaining hours by 25% "to account for a failure to exercise billing judgment" and by another 25% because the fee award was "significantly disproportionate to the amount [of money] involved in the case." When the Authority denied its request for reconsideration, the Union petitioned for review in this court.

II. Analysis

We do not have jurisdiction to review an order of the Authority reviewing the decision of an arbitrator unless the order of the Authority "involves an unfair labor practice." 5 U.S.C. § 7123(a)(1). In this case the order of the Authority deals only with the issue of the union attorney's fee. The Union raises two arguments in an attempt to overcome the jurisdictional bar to our review of such an order.

A. The Statutory Exception

First the Union argues we have jurisdiction because the Authority's order "involves an unfair labor practice" within the meaning of § 7123(a)(1). As we explained in OEA, the Federal Service Labor-Management Relations Statute, 5 U.S.C. § 7101 et seq., establishes a "two-track system for resolving labor disputes." 824 F.2d at 62. A party aggrieved by an unfair labor practice may go down either track but not both. 5 U.S.C. § 7116(d). A party starts down the first track by filing an unfair labor practice charge with the Authority. Id. § 7118(a). If the General Counsel issues a complaint, then the Authority will adjudicate the matter, and its decision will be subject to judicial review. Id. § 7123(a). A party starts down the second track, as did the Union in this case, by filing a grievance and pursuing it through the procedures provided in the collective bargaining agreement between the employer and the union. Id. § 7121(a)(1). If the grievance is denied, then the union may seek binding arbitration. Id. § 7121(b)(1)(C)(iii). If either party is dissatisfied with the decision of the arbitrator, then it may file exceptions thereto with the Authority. Id. § 7122. Judicial review of the Authority's decision, however, is foreclosed unless its order "involves an unfair labor practice." Id. § 7123(a)(1).

We explicated the meaning of the just-quoted standard in OEA. There we observed, "An [Authority] holding that there was (or was not) a statutory unfair labor practice committed in a particular case would obviously satisfy this somewhat amorphous standard, but something short of a paradigm case may also sufficiently `involve' a statutory unfair labor practice to confer jurisdiction." OEA, 824 F.2d at 65. That the standard is amorphous, however, does not mean it is met in every case. A mere "passing reference" to an unfair labor practice will not suffice. See U.S. Dep't of the Interior v. FLRA, 26 F.3d 179, 184 (D.C.Cir.1994) (DOI). The unfair labor practice "must be either an explicit ground for, or be necessarily implicated by, the Authority's decision." OEA, 824 F.2d at 68.

In the order now before us the Authority addressed only the fee award, but the Union contends the order is nonetheless reviewable because the arbitrator's "principal award," meaning his award on the merits of the grievance, "is replete with findings of statutory [unfair labor practices]" and there are "repeated references to these findings in the [Authority's] decision." Actually, the arbitrator found only one unfair labor practice in his decision on the merits, namely, the employer's refusal to permit Roach access to the DFAS facility. That other statutory violations or violations of the collective bargaining agreement "could be characterized as . . . statutory unfair labor practice[s] will not suffice" to make the order reviewable. Id. at 67; see 5 U.S.C. § 7116(a)(8) (unfair labor practice for agency to "fail or refuse to comply with any provision of" Statute). But more to the point, it is not the arbitrator's award on the merits of the grievance that must involve an unfair labor practice as the predicate for judicial review; it is the order of the Authority that is the subject of the petition for judicial review—in this case the Authority's order reviewing the arbitrator's fee award—that must involve an unfair labor practice. See 5 U.S.C. § 7123(a). In the latter order, there is neither a single mention of § 7116 (unfair labor practices) nor any discussion of the arbitrator's finding of an unfair labor practice other than passing references when the Authority recounts the issues presented in this "fairly straightforward case." As we have said before, a "passing reference does not satisfy the requirement" that the order involve an unfair labor practice. DOI, 26 F.3d at 184.

The Union also suggests the order involves an unfair labor practice because the Authority must have considered the arbitrator's holding that the employer had engaged in an unfair labor practice when the Authority approved the arbitrator's finding that the DFAS knew or should have known it would not prevail on the merits, which finding...