Department of Health and Human Services, Social Sec. Admin. v. Federal Labor Relations Authority

• Decision Date: 13 October 1992
• Docket Number: AFL-CI,I,No. 91-1444,91-1444
• Citation: 976 F.2d 1409
• Parties: 141 L.R.R.M. (BNA) 2502, 298 U.S.App.D.C. 105 DEPARTMENT OF HEALTH AND HUMAN SERVICES, SOCIAL SECURITY ADMINISTRATION, Petitioner, v. FEDERAL LABOR RELATIONS AUTHORITY, Respondent, American Federation of Government Employees,ntervenor.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1409

976 F.2d 1409

141 L.R.R.M. (BNA) 2502, 298 U.S.App.D.C. 105

DEPARTMENT OF HEALTH AND HUMAN SERVICES, SOCIAL SECURITY ADMINISTRATION, Petitioner, v. FEDERAL LABOR RELATIONS AUTHORITY, Respondent American Federation of Government Employees, AFL-CIO, Intervenor.

No. 91-1444.

United States Court of Appeals, District of Columbia Circuit.

Argued Sept. 21, 1992.

Decided Oct. 13, 1992.

Marilyn S.G. Urwitz, Attorney, Dept. of Justice, with whom Stuart M. Gerson, Asst. Atty. Gen., and William Kanter, Attorney, Dept. of Justice, Washington, D.C., were on the brief, for petitioner.

Richard Zorn, Attorney, Federal Labor Relations Authority, with whom William E. Persina, Sol., William R. Tobey, Deputy Sol., and Arthur A. Horowitz, Associate Sol., Washington, D.C., were on the brief for respondent.

Anne M. Wagner, with whom Mark D. Roth, Washington, D.C., was on the brief, for intervenor American Federation of Government Employees, AFL-CIO. Judith D. Galat, Washington, D.C., entered an appearance for intervenor.

Before WALD, SILBERMAN and SENTELLE, Circuit Judges.

Opinion for the Court filed by Circuit Judge WALD.

WALD, Circuit Judge:

This is a petition for review by the Social Security Administration ("SSA") of an order of the Federal Labor Relations Authority ("FLRA" or the "Authority"), and a cross-application by the FLRA for enforcement of its order. The American Federation of Government Employees, AFL-CIO ("AFGE") is an intervenor in support of the decision of the FLRA. The issue is whether, in an unfair labor practice proceeding brought as a result of a government agency's refusal to adhere to an arbitration award, the Authority may enforce compliance with the arbitration award regardless of whether the arbitrator had contractual jurisdiction in the original proceeding. The FLRA's determination that, on the facts of this case, such an argument may not be asserted as a defense to an unfair labor practice charge represents a reasonable reading of its governing statute. SSA's petition for review is therefore denied and the FLRA's application for enforcement of the order is granted.

I. BACKGROUND

This dispute had its genesis in 1983 when the SSA removed Kirk Bigelow, a claims representative, from his position for refusing to attend job training. Bigelow balked at attending training because he had not received the pay he believed he was entitled to for union activities, so-called "official time." Bigelow filed a grievance, and an arbitrator required that SSA reinstate Bigelow as long as he agreed to spend some of his work time on agency, rather than union, obligations. Shortly after returning to work, Bigelow sought leave without pay to attend law school full time. SSA denied this request, asserting that Bigelow was not upholding his end of the bargain--i.e., he proposed to spend no time on agency duties. Bigelow then resigned, and AFGE filed a grievance alleging that SSA's denial of leave without pay was an improper constructive discharge of Bigelow.

The Bigelow dispute was not the only conflict between SSA and AFGE over official time during this period. In 1982, the union and the agency selected Arbitrator Justin Smith to handle over 1,000 pending grievances that involved the official time provision of their collective bargaining agreement. Under the parties' agreement, Arbitrator Smith was first to interpret the contractual term governing official time and then to apply that interpretation to the specific grievances. Arbitrator Smith completed the first step of this process with the issuance of a "Final Award" on April 5, 1985. The parties then entered into an agreement extending his jurisdiction to all specific official time claims filed by September 10, 1985. The union submitted the Bigelow dispute to Arbitrator Smith, but not until September 12, 1986, a year after the deadline under the agreement. Nevertheless, Arbitrator Smith accepted jurisdiction over the claim, ruled in Bigelow's favor, and ordered his reinstatement.

In a standard case, the SSA could have appealed this adverse arbitration decision directly to the FLRA under 5 U.S.C. § 7122(a), ¹ enacted as part of the Federal Service Labor-Management Relations Statute ("FSLMRS"). However, because the Bigelow dispute concerned a removal, a matter covered by 5 U.S.C. § 7512(1), ² SSA's opportunity for review was governed by 5 U.S.C. § 7121(f), ³ which in turn incorporates the procedures of 5 U.S.C. § 7703(d). ⁴ Under § 7703(d), it is the Director of the Office of Personnel Management ("OPM")--and not the SSA--that must petition the Federal Circuit for discretionary review if the Director believes that the arbitrator's decision would have a "substantial impact on a civil service law, rule, regulation, or policy directive." In this case, OPM did seek review of the Bigelow award, but on substantive, not jurisdictional, grounds. The Federal Circuit refused to hear the case, however, finding that it did not have the "requisite substantial impact" to merit review. Horner v. Bigelow, Misc. Docket No. 178, slip opinion ("slip op.") at 3 (Fed.Cir. Aug. 31, 1987).

While review of the Bigelow decision was being sought, the SSA also filed exceptions with the FLRA under 5 U.S.C. § 7122(a) contesting a separate order of Arbitrator Smith. In that order, Arbitrator Smith ruled that, for the life of the collective bargaining agreement, only he could resolve all official time disputes as well as all disciplinary proceedings arising out of official time conflicts. In November 1987, the Authority set aside that order, American Federation of Government Employees v. Social Security Administration, 29 F.L.R.A. 1568, 1579 (1987) ("SSA I "), and decided that the breadth of the jurisdiction that AFGE and SSA had contracted to give Arbitrator Smith was itself subject to arbitration, if the parties could not resolve the issue themselves. See id. at 1580.

The parties subsequently agreed to have Arbitrator Ira Jaffe determine the scope of Arbitrator Smith's jurisdiction under the contract. On April 7, 1988, Arbitrator Jaffe determined that Arbitrator Smith had overstepped the contractual authority granted to him. More specifically, Arbitrator Jaffe concluded that Arbitrator Smith's jurisdiction extended only to the application of the rulings in his April 5, 1985 Final Award to individual claims submitted by the September 10, 1985 contractual deadline. Arbitrator Jaffe also found that Arbitrator Smith had no jurisdiction over actions involving an agency's discipline of its employees. Finally, Arbitrator Jaffe stated that he was not authorized to decide "what weight, if any," should be given to awards that Arbitrator Smith had already, albeit mistakenly, granted outside of his jurisdiction.

The FLRA subsequently upheld Arbitrator Jaffe's decision. See Social Security Administration v. National Council of Social Security Administration Field Operation Locals, American Federation of Government Employees, 33 F.L.R.A. 743, 755 (1988) ("SSA II "). As to the unauthorized awards that Arbitrator Smith had already made, the FLRA held that those that "bec[a]me final and binding under section 7122 of the Statute" would not be affected by Arbitrator Jaffe's determination. Id. at 753.

SSA, relying on SSA II 's conclusions as to Arbitrator Smith's lack of jurisdiction, refused to comply with the award to Bigelow. AFGE then filed an unfair labor practice charge, alleging that SSA violated5 U.S.C. § 7116(a)(1) and § 7116(a)(8) ⁵ by not complying with § 7122(b)'s injunction that "[a]n agency shall take the actions required by an arbitrator's final award." FLRA's General Counsel agreed and filed an unfair labor practice complaint against SSA. The Administrative Law Judge ("ALJ") dismissed the complaint, finding that there was no unfair labor practice because Arbitrator Smith had no jurisdiction to hear Bigelow's claims that were submitted a year after the contractual deadline laid down in SSA II. See Department of Health & Human Services, Social Security Administration v. American Federation of Government Employees, 41 F.L.R.A. 777, 790 (1989).

The Authority, however, reversed the ALJ's decision and ordered the SSA to comply with Arbitrator Smith's award to Bigelow. See Department of Health & Human Services, Social Security Administration v. American Federation of Government Employees, 41 F.L.R.A. 755, 774 (1991) ("SSA III "). The Authority found that the decision on Bigelow's grievance became final and enforceable after completion of the § 7703(d) Federal Circuit appeals process. See id. at 767. Thus, allegations that the arbitrator had exceeded the authority that the parties contracted to give him could no longer be raised. According to the FLRA, this conclusion accorded with the relevant congressional policies of arbitral finality and limited appellate review of removal decisions conducted exclusively by the Federal Circuit. See id. at 768, 771. Although the FLRA acknowledged that it had previously determined in VA Central Office v. American Federation of Government Employees, 27 F.L.R.A. 835 (1987), aff'd sub nom. American Federation of Government Employees v. FLRA, 850 F.2d 782 (D.C.Cir.1988) ("AFGE "), that claims of statutory impediments to an arbitrator's jurisdiction could be raised to defeat finality in an unfair labor practice proceeding, it concluded that that decision did not apply to mere contractual bars to arbitral authority. See SSA III, 41 F.L.R.A. at 768. Finally, the Authority concluded that SSA II and Arbitrator Jaffe's decision had no effect on any prior decisions of Arbitrator Smith that had already become final and binding. See id. at 773.

II. ANALYSIS

A. Standard of Review

The FLRA's decision as to what constitutes an unfair labor practice under its statute is ordinarily entitled to substantial deference. See AFGE, 850 F.2d at 785 (citing Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984))....