Equal Employment Opportunity Commission v. Federal Labor Relations Authority, 84-1728
| Court | United States Supreme Court |
| Writing for the Court | PER CURIAM; WHITE; STEVENS |
| Citation | 106 S.Ct. 1678,90 L.Ed.2d 19,476 U.S. 19 |
| Parties | EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Petitioner v. FEDERAL LABOR RELATIONS AUTHORITY et al |
| Docket Number | No. 84-1728,84-1728 |
| Decision Date | 29 April 1986 |
v.
FEDERAL LABOR RELATIONS AUTHORITY et al.
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PER CURIAM.
We granted certiorari, 472 U.S. 1026, 105 S.Ct. 3497, 87 L.Ed.2d 629 (1985), to consider the question whether a union proposal that would require a federal agency to comply with OMB Circular A-76 (1983) Performance of Commercial Activities, which prescribes guidelines for contracting out by federal agencies, is negotiable under Title VII of the Civil Service Reform Act of 1978, 5 U.S.C. § 7101 et seq.
In the course of contract negotiations with petitioner, the Equal Employment Opportunity Commission (EEOC), respondent American Federation of Government Employees (AFGE) submitted the following proposal:
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"The EMPLOYER agrees to comply with OMB Circular A-76 and other applicable laws and regulations concerning contracting out."
The EEOC took the position that this proposal was nonnegotiable under the Civil Service Reform Act (Act) and declined to bargain over it. AFGE then petitioned for review by respondent Federal Labor Relations Authority (FLRA), which is empowered by the Act to "resolv[e] issues relating to the duty to bargain" in the federal sector. 5 U.S.C. § 7105(a)(2)(E).
Before the FLRA, the EEOC's principal contention was that because the proposal concerned contracting out it was inconsistent with the Act's management rights clause, which, in pertinent part, provides that "nothing in [Title VII] shall affect the authority of any management official of any agency—. . . in accordance with applicable laws—. . . to make determinations with respect to contracting out." 5 U.S.C. § 7106(a)(2)(B) (emphasis added). The FLRA rejected this view, ruling that the proposal would not invade management's reserved rights since it would merely "require management to exercise its right to make contracting out determinations in accordance with whatever applicable laws and regulations exist at the time of such action." 10 F.L.R.A. 3 (1982). In the course of rejecting the EEOC's additional argument that the Circular itself forbade negotiation over the proposal, the FLRA went on to explain that even in the absence of AFGE's proposed contract provision "disputes concerning conditions of employment arising in connection with the application of the Circular would be covered by the negotiated grievance procedure." Id., at 5.
A divided panel of the Court of Appeals for the District of Columbia Circuit affirmed the FLRA's decision. 240 U.S.App.D.C. 218, 744 F.2d 842 (1984). The Court of Appeals found the EEOC's claim that any proposal regarding contracting out was barred by the management rights clause "untenable in light of the plain text of the clause."
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Id., at 224, 744 F.2d, at 848. Since management's reserved right was conditioned upon compliance with "applicable laws," and since the proposed contract language "essentially echoes the statutory requirement that contracting-out determinations be made in accordance with applicable laws," the proposal would not affect the EEOC's reserved authority to make contracting-out decisions. Ibid. The Court of Appeals also agreed with the FLRA that under 5 U.S.C. § 7103(a)(9)(C)(ii), which defines "grievance" to include "any claimed violation, misinterpretation, or misapplication of any law, rule, or regulation affecting conditions of employment," an alleged violation of the Circular would be grievable even in the absence of AFGE's proposal. 240 U.S.App.D.C., at 227, 744 F.2d, at 850. The dissenting judge believed that the proposal was intended to and would place additional constraints on the EEOC's reserved rights with respect to contracting out. Id., at 228, 744 F.2d, at 852 (MacKinnon, J., dissenting).
In this Court, the EEOC raises three principal arguments in support of its claim that AFGE's proposal is nonnegotiable. First, although it did not so argue to the FLRA or the Court of Appeals, the EEOC now contends that Circular A-76 is not an "applicable la[w]" within the meaning of the management rights clause, and therefore that AFGE's proposal, by requiring compliance with the Circular, would intrude on management's reserved rights. Second, and again for the first time in this Court, the EEOC asserts that an alleged violation of the Circular would not be grievable absent AFGE's proposal because the Circular is not a "law, rule, or regulation" within the meaning of § 7103(a)(9)'s definition of "grievance." Third, the EEOC suggests that the Circular is a "Government-wide rule or regulation" for purposes of 5 U.S.C. § 7117(a)(1), and argues that § 7117(a)(1) excludes such rules or regulations from the scope of the duty to bargain. This argument, too, was never presented to the FLRA.
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Whatever their merit, we have concluded that these contentions, which are the linchpins of the EEOC's brief in this Court, are not properly before us. The Act expressly provides that when an aggrieved party seeks judicial review of a final order of the FLRA, "[n]o objection that has not been urged before the Authority, or its designee, shall be considered by the court, unless the failure or neglect to urge the objection is excused because of extraordinary circumstances." 5 U.S.C. § 7123(c). This language is virtually identical to that found in § 10(e) of the National Labor Relations Act, 29 U.S.C. § 160(e), which provides that "[n]o objection that has not been urged before the [National Labor Relations] Board . . . shall be considered by the court, unless the failure or neglect to urge such objection shall be excused because of extraordinary circumstances." This Court has interpreted § 10(e) to mean that a Court of Appeals is "without jurisdiction to consider" an issue not raised before the Board if the failure to do so is not excused by extraordinary circumstances. Woelke & Romero Framing, Inc. v. NLRB, 456 U.S. 645, 665-666, 102 S.Ct. 2071, 2082-2083, 72 L.Ed.2d 398 (1982). See also Detroit Edison Co. v. NLRB, 440 U.S. 301,...
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...the Supreme Court construed 5 U.S.C. § 7123(c), which has nearly identical language, to create a jurisdictional bar. See EEOC v. FLRA, 476 U.S. 19, 23-24, 106 S.Ct. 1678, 90 L.Ed.2d 19 (1986). And in Platte River Whooping Crane Critical Habitat Maintenance Trust v. FERC, 277 U.S.App. D.C. 3......
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Washington Gas Light v. Public Service, No. 08-AA-148.
...the Supreme Court construed 5 U.S.C. § 7123(c), which has nearly identical language, to create a jurisdictional bar. See EEOC v. FLRA, 476 U.S. 19, 23-24, 106 S.Ct. 1678, 90 L.Ed.2d 19 (1986). And in Platte River Whooping Crane Critical Habitat Maintenance Trust v. FERC, 277 U.S.App. D.C. 3......
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Brooks v. State, 60
...an immediate danger that a violent response will ensue. Finally, a gun can cause harm when used as a bludgeon. 476 U.S. at 17-18, 106 S.Ct. at 1678, 90 L.Ed.2d at 16 [footnote omitted]. Thus, the Court seems to have adopted both the objective and subjective Relying on the subjective approac......
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U.S. v. Hamrick, 92-5107
...danger that a violent response will ensue. Finally, a gun can cause harm when used as a bludgeon. McLaughlin, 476 U.S. at 17-18, 106 S.Ct. at 1678 (footnote omitted) (emphasis added). This reasoning applies with the same force to 18 U.S.C. Sec. 111(b), the assault of a federal officer statu......
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National Federation of Federal Employees v. Greenberg, 92-5216
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