National Ass'n of Government Employees v. FLRA, Civ. A. No. 2:93cv83.

• Court: United States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)
• Writing for the Court: DOUMAR
• Citation: 830 F. Supp. 889
• Parties: NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, Plaintiff, v. FEDERAL LABOR RELATIONS AUTHORITY, et al., Defendants.
• Decision Date: 29 June 1993
• Docket Number: Civ. A. No. 2:93cv83.

830 F. Supp. 889

NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, Plaintiff,
v.
FEDERAL LABOR RELATIONS AUTHORITY, et al., Defendants.

Civ. A. No. 2:93cv83.

United States District Court, E.D. Virginia, Norfolk Division.

June 29, 1993.

830 F. Supp. 890

COPYRIGHT MATERIAL OMITTED

830 F. Supp. 891

Neil C. Bonney, M. Jefferson Euchler, Neil C. Bonney & Associates, Virginia Beach, VA, for National Ass'n of Government Employees

William R. Tobey, Deputy Sol., Federal Labor Relations Authority, Washington, DC, for Federal Labor Relations Authority, et al.

ORDER

DOUMAR, District Judge.

This matter came before the court on Defendants' Motion to Dismiss, or in the Alternative, for Summary Judgment filed January 4, 1993, and Plaintiff's Motion for Summary Judgment filed February 4, 1993. This court referred the case to a United States Magistrate Judge by order of March 17, 1993, pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B), for a report and recommendation concerning defendant's motion for summary judgment.

The magistrate judge filed his report and recommendation on April 6, 1993, recommending that Defendants' Motion to Dismiss, or in the Alternative, for Summary Judgment be granted, and Plaintiff's Motion for Summary Judgment be dismissed.

Plaintiff timely filed its objections to the Magistrate Judge's Report and Recommendation on April 14, 1993. Upon a de novo review of those portions of the report and recommendation to which plaintiff objects, this court hereby adopts and approves in full the findings and recommendation set forth in the Magistrate Judge's Report and Recommendation filed April 6, 1993.

Accordingly, it is ORDERED that Plaintiff's Motion for Summary Judgment be DENIED; Defendants' Motion to Dismiss, or in the Alternative, for Summary Judgment be GRANTED; and that this action be DISMISSED with prejudice.

IT IS SO ORDERED.

REPORT AND RECOMMENDATION

PRINCE, United States Magistrate Judge.

Order of Designation

United States District Judge Robert G. Doumar, by an Order entered March 17, 1993, designated the undersigned Magistrate Judge to conduct a hearing and to submit to a judge of the Court proposed recommendations for disposition by the judge of the defendant's Motion to Dismiss, or in the Alternative, for Summary Judgment filed January 4, 1993; and the plaintiff's Motion for Summary Judgment filed February 4, 1993.

A hearing was held on March 18, 1993, at which plaintiff was represented by Neil C. Bonney and M. Jefferson Euchler, Esquires; and William R. Tobey, Esquire, appeared on behalf of defendant.

Nature of the Case

This is an action arising out of a claim for declaratory relief and mandamus. Plaintiff, National Association of Government Employees ("the Union"), the exclusive bargaining representative of federal employees, seeks a declaration that the defendant, Federal Labor Relations Authority ("the Authority"), has a statutory duty to resolve exceptions to arbitral awards, that they have failed to meet their duty, and that this failure also violates the Back Pay Act, 5 U.S.C. § 5596 (1986), and the Union's right to due process of law. The Union further requests the issuance of a writ of mandamus directing the Authority to fulfill their duty by remanding two cases back to arbitrators for decision. The Authority counters that this Court lacks jurisdiction to review its decisions in the two cases because such review is specifically precluded under § 7122 of the Federal Service Labor-Management Relations Statute, as amended, 5 U.S.C. §§ 7101-7135 (1988).

Background

The Federal Service Labor-Management Relations Statute, Title VII of the Civil Service Reform Act of 1978, 5 U.S.C. § 7101 et seq. ("the Statute"), created a statutory scheme governing labor relations between federal agencies and their employees. The

830 F. Supp. 892

Statute created the Federal Labor Relations Authority, a three-member independent and bipartisan body within the Executive Branch. 5 U.S.C. § 7104. The Authority's function in the public sector is analogous to the role of the National Labor Relations Board in the private sector. Dept. of Air Force v. Fed. Labor Relations Auth., 775 F.2d 727, 731 (6th Cir.1985) (citing Bureau of Alcohol, Tobacco and Firearm v. Federal Labor Relations Authority, 464 U.S. 89, 92-93, 104 S.Ct. 439, 442, 78 L.Ed.2d 195 (1983); United States Air Force v. Federal Labor Relations Authority, 681 F.2d 466, 466 (6th Cir.1982))

The Statute requires federal agencies and unions representing federal employees to bargain over terms and conditions of employment. Section 7121 of the Statute directs that "any collective bargaining agreement shall provide procedures for the settlement of grievances." Grievances not satisfactorily settled under the negotiated scheme may be submitted to binding arbitration by either party. 5 U.S.C. § 7121(b)(3)(C); American Federation of Government Employees v. Federal Labor Relations Authority, 712 F.2d 640, 641 (D.C.Cir.1983). Section 7105 empowers the Authority to, among other things, resolve exceptions to arbitration awards. The procedures and standards by which a party may take exceptions from an arbitration award to the Authority are set forth in section 7122. If no exception to an arbitrator's award is filed during the 30-day period following the date that the award is served on the party, the award shall be final and binding. Loc. 1928, Am. Fed. of Gov. Emp. v. Fed. Lab. Rel. Auth., 630 F.Supp. 947, 949 (D.D.C.1986).

Facts

On January 4, 1993, defendants filed a statement of material facts, which the plaintiff adopted at the hearing on March 18, 1993. Since the parties agree that this statement accurately reflects the material facts, it will be adopted in this report.

Plaintiff, the Union, is a labor organization pursuant to the definition found in 5 U.S.C. § 7103(a)(4) of the Federal Service Labor-Management Relations Statute, 5 U.S.C. §§ 7101-7135 (1988) ("the Statute"). Defendant, the Authority, is an independent agency within the executive branch of the federal government, and administers the Statute.

On March 31, 1990, an arbitration award was issued in Norfolk Naval Shipyard and National Association of Government Employees, Local R4-19, FMCS Case No. 90-07837.¹ Timely exceptions to this award were filed with the Authority on May 3, 1990 by the Navy pursuant to 5 U.S.C. § 7122. The exceptions were docketed by the Authority as U.S. Department of the Navy, Norfolk Naval Shipyard, Portsmouth, Virginia and National Association of Government Employees, Local R4-19, No. 0-AR-1915. On July 13, 1990, the Authority issued its decision setting aside the arbitrator's award in this case. No. 0-AR-1915, 36 F.L.R.A. (No. 39) 304. On July 16, 1990, the Union unilaterally requested that the arbitrator issue a new decision in the case. The arbitrator issued an amended award on July 21, 1990. Timely exceptions to the amended arbitration award were filed by the Navy on July 21, 1990, pursuant to 5 U.S.C. § 7122. The Union then filed an opposition to the agency's exceptions on September 4, 1990, pursuant to 5 C.F.R. § 2425.1(c). The exceptions and opposition were docketed as No. 0-AR-1982. The Authority, set aside the amended award on February 15, 1991 in Norfolk Naval Shipyard, No. 0-AR-1982, 39 F.L.R.A. (No. 56) 692. On February 27, 1991, the Union requested reconsideration of the Authority's decision pursuant to 5 C.F.R. § 2429.17. The Authority denied reconsideration on March 15, 1991. No. 0-AR-1982, 39 F.L.R.A. (No. 106) 1238.

On July 9, 1991, an arbitration award was issued in Department of the Army, HQ 5th Inf. Div. (Mech) and Fort Polk and National Association of Government Employees, Local R5-168, FMCS No. 90-18085, awarding the grievant a retroactive temporary promotion but denying the Union's motion for attorney fees. Timely exceptions to the arbitration award were filed by the Union on

830 F. Supp. 893

July 25, 1991 and the Army on August 6, 1991, pursuant to 5 U.S.C. § 7122. Oppositions to the exceptions were filed by the Army on August 23, 1991 and by the Union on September 4, 1991. The exceptions and oppositions were docketed as No. 0-AR-2145. The Authority denied the Army's exceptions and modified the arbitral award to strike the denial of attorney fees on May 29, 1992. 44 F.L.R.A. (No. 121) 1548. On June 5, 1992, the Union filed a request for reconsideration of the Authority's decision pursuant to 5 C.F.R. § 2429.17, requesting that the Authority remand the attorney fee issue back to the arbitrator for a decision consistent with the Authority's ruling. The Authority denied the motion for reconsideration on August 21, 1992

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Defendant contends that plaintiff's complaint must be dismissed pursuant to Rule 12(b)(1) because the court lacks subject matter jurisdiction under the Federal Service Labor-Management Relations Statute, and pursuant to Rule 12(b)(6) because the plaintiff has failed to state a claim upon which relief can be granted, or, in the alternative, pursuant to Rule 56 because the defendant is entitled to judgment as a matter of law. Plaintiff contends that summary judgment should be entered in its favor pursuant to Rule 56, on the grounds that there is no genuine issue as to any material fact, and plaintiff is entitled to judgment as a matter of law.

The Authority's Rule 12(b)(1) Motion

As previously noted, the Authority has moved to dismiss the complaint on the ground that this Court lacks jurisdiction over the subject matter of the complaint. The complaint is based on several provisions of the Federal Service Labor-Management Relations Statute, as amended, 5 U.S.C. § 7101-7135 (1988) ("the Statute"), specifically, § 7105 regarding the powers and duties of the Authority and § 7122 regarding exceptions to arbitral awards. The relevant portion of § 7105(a) provides: "(2) The Authority shall, ... (H) resolve exceptions to arbitrator's awards under section 7122...." 5 U.S.C. §...