Karahalios v. DEFENSE LANGUAGE INSTITUTE, ETC., C-81-2745 RFP.

• Court: United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
• Citation: 534 F. Supp. 1202
• Docket Number: No. C-81-2745 RFP.,C-81-2745 RFP.
• Parties: Efthimios A. KARAHALIOS, Plaintiff, v. DEFENSE LANGUAGE INSTITUTE FOREIGN LANGUAGE CENTER PRESIDIO OF MONTEREY, and Local 1263, National Federation of Federal Employees, Defendants.
• Decision Date: 09 March 1982

534 F. Supp. 1202

Efthimios A. KARAHALIOS, Plaintiff,
v.
DEFENSE LANGUAGE INSTITUTE FOREIGN LANGUAGE CENTER PRESIDIO OF MONTEREY, and Local 1263, National Federation of Federal Employees, Defendants.

No. C-81-2745 RFP.

United States District Court, N. D. California.

March 9, 1982.

534 F. Supp. 1203

COPYRIGHT MATERIAL OMITTED

534 F. Supp. 1204

Thomas R. Duffy, Monterey, Cal., for plaintiff

Deborah Seymour, Asst. U. S. Atty., San Francisco, Cal., Paul Blankenstein and Mark Chavez, Dept. of Justice, Washington, D. C., for defendants.

ORDER

PECKHAM, Chief Judge.

Efthimios Karahalios is employed by the Defense Language Institute ("DLI"), a federal agency, as an instructor of Greek. He has filed suit against DLI and Local 1263, National Federation of Federal Employees ("the union"), the exclusive representative of DLI employees. The events giving rise to the suit are as follows.

In early 1977, plaintiff was promoted from instructor (pay grade GS-9) to course developer (pay grade GS-11) through a competitive selection process. Shortly thereafter, Simon Kuntelos, another Greek instructor at DLI, filed a grievance.¹ He had been a course developer from 1963 until 1971, at which point his rank had been reduced to instructor as a result of the elimination of the course developer position. When the position became available again and was given to plaintiff, Kuntelos filed the grievance mentioned above. He was denied relief by DLI. The union then demanded that his grievance be arbitrated. The arbitrators decided that the competitive selection process which had been used to select plaintiff was erroneous. The position was reopened.

Throughout Kuntelos' grievance and arbitration, neither the union nor DLI notified plaintiff of the controversy. He was finally informed of the arbitrators' decision on February 21, 1978, and was told he could respond in writing. Kuntelos was ultimately awarded the position of course developer on April 6, 1978. Plaintiff's grade was reduced to GS-9.

Plaintiff filed grievances with DLI in May and October of 1978. They were denied on December 20, 1978. Plaintiff then requested that the union invoke arbitration. It refused, on the grounds that advocacy of plaintiff's position would conflict with the union's previous advocacy of Kuntelos's position, and with the binding decision the arbitrators had made concerning Kuntelos' grievance. On January 17, 1979, plaintiff himself attempted to invoke arbitration. The union and DLI both refused to arbitrate.

On May 16, 1979, plaintiff filed unfair labor practice charges against the union and DLI, with the Federal Labor Relations Authority ("FLRA"). The Regional Director of the FLRA decided not to file complaints against either the union or DLI. Plaintiff requested that the General Counsel of the FLRA review this decision. The General Counsel affirmed the Regional Director's decision with respect to the charge against DLI, but reversed as to the union, finding that, by deciding not to invoke arbitration on plaintiff's behalf, the union had violated its duty to represent all members of the bargaining unit equally. The General Counsel directed the Regional Director to issue a complaint against the union, absent settlement. The union and the Regional Director reached a settlement agreement whereby the union would notify its members that, in future, it would not inform employees that it could not represent more than one employee seeking the same position. The settlement agreement afforded no relief to plaintiff as an individual. Plaintiff requested that the General Counsel review the settlement as to the union, and reconsider the decision not to issue a complaint against the DLI. Both requests were denied.

Plaintiff then filed this action. In his First Amended Complaint, he alleges that the union breached its duty of fair representation, and that DLI breached the collective bargaining agreement. In addition, he asserts two constitutional claims against DLI. Both defendants filed motions to dismiss the claims relating to the labor disputes, arguing that this court lacks subject

534 F. Supp. 1205

matter jurisdiction over them.² In addition, DLI moved to dismiss the constitutional claims

I. Subject Matter Jurisdiction Over Unfair Representation and Breach of Collective Bargaining Agreement Claims

A. Applicable Body of Law

Prior to January 11, 1979, labor-management relations in the federal service were governed by Executive Order 11491, as amended. 5 U.S.C.A. § 7101, note. That order authorized federal employees to form labor organizations. It also set up an administrative scheme for enforcing the provisions of the order. It did not provide a role for the federal judiciary in this scheme. Defendants argue that the order is controlling, and that, as a result, this court has no jurisdiction over any of plaintiff's claims concerning labor-management relations in the federal sector.

Title VII of the Civil Service Reform Act of 1978, 5 U.S.C. § 7101 et seq. ("the Act") revised the administrative procedures set forth in Executive Order 11491, and provided opportunities for limited judicial review not previously available. Thus, the first question we must address is which body of law applies to the instant case — the Executive Order, or the Act.

The Act became effective on January 11, 1979. A savings clause makes the Act inapplicable to cases instituted before its effective date:

No provision of this Act ... shall affect any administrative proceedings pending at the time such provision takes effect. Orders shall be issued in such proceedings and appeals shall be taken therefrom as if this Act had not been enacted.

5. U.S.C.A. § 1101, note (Supp.1981). Under the savings clause, the question is whether any administrative proceedings were pending in the present case on January 11, 1979. If such proceedings were pending, the Executive Order applies. If there were no proceedings pending on January 11, 1979, the Act applies.

The most recent version of the federal regulations issued during the transition from the Executive Order to the Act indicates that in order for an administrative proceeding to have been "pending" as of January 11, 1979, such that the old Executive Order should apply, the proceeding must have been filed with the FLRA by that date. It is not enough for the events triggering the administrative proceeding to have occurred prior to January 11, 1979:

§ 2400.2 Processing of unfair labor practice, representation, grievability/arbitrability and national consultation rights cases.

All unfair labor practice, representation, grievability/arbitrability and national consultation rights cases pending before the Assistant Secretary and the Vice Chairman on December 31, 1978 (including cases the time limit for which an appeal to the Council has not expired under the Council's rules and regulations), all such cases pending before the Council on December 31, 1978, and all such cases filed with the Authority during the period January 1 through January 10, 1979, shall be processed by the Authority in accordance with the Rules and Regulations promulgated under the Executive Order.

5 C.F.R. 845 § 2400.2 (1981). Compare earlier version at 5 C.F.R. 642 § 2400.2 (1979). It is true, as defendants state, that the transitional regulations are for the internal use of the FLRA and are not binding on the courts. But they are not inconsistent with the savings clause, which is binding upon the courts.

If analyzed under the transitional regulations of the FLRA, the present case would be governed with the new Act, for, although the events which gave rise to this action all occurred prior to January 11, 1979, Karahalios filed his unfair labor practice charges with the FLRA on May 16, 1979, well after the effective date of the new Act. The language of the savings clause, as well as the FLRA's transitional

534 F. Supp. 1206

regulations, indicate that the present lawsuit should be governed by the new Act, rather than by the old Executive Order. We so hold.³

B. Subject Matter Jurisdiction Under the Civil Service Reform Act of 1978

Defendants contend that, even if the present action is governed by the new Act, as we have held, the federal district courts lack subject matter jurisdiction over actions such as the present one. The new Act does provide a role for the federal judiciary, but, as defendants point out, that role is narrowly circumscribed.⁴ In contrast, Congress has entrusted a broad range of functions to the FLRA, the specialized agency which administers and enforces the provisions of the Act.⁵

It is defendants' contention that plaintiff is simply alleging that defendants have committed unfair labor practices under 5

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U.S.C. § 7116, and that plaintiff's claims are therefore under the exclusive jurisdiction of the FLRA, just as most conduct arguably protected by the NLRA or arguably prohibited by its unfair labor practices provisions is under the exclusive jurisdiction of the National Labor Relations Board. Amalgamated Association of Street, Electric Railway and Motor Coach Employees v. Lockridge, 403 U.S. 274, 91 S.Ct. 1909, 29 L.Ed.2d 473 (1971); San Diego Building Trades Council v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959). Thus, they say, plaintiff cannot bring an action for breach of the duty of fair representation and breach of the collective bargaining agreement in federal district court. His only recourse is to pursue his administrative remedies (which he has done), and then appeal to the Ninth Circuit from a final order of the FLRA

This is evidently a case of the first impression on this question. The jurisdiction of the federal courts under the Act has so far been decided only in contexts in which the plaintiff has requested injunctive relief. See, e.g., United States v. Professional Air Traffic Controllers Organization (PATCO), 653 F.2d 1134 (7th Cir. 1981), cert. denied, ___ U.S. ___, 102 S.Ct. 639, 70 L.Ed.2d...