Overseas Educ. Ass'n v. Federal Labor Relations Authority, Nos. 85-1420

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Writing for the CourtBefore WALD; STARR; DAVIS
Citation824 F.2d 61
Parties125 L.R.R.M. (BNA) 3330, 262 U.S.App.D.C. 334 OVERSEAS EDUCATION ASSOCIATION (A Unified State Affiliate of the National Education Association), et al., Petitioners, v. FEDERAL LABOR RELATIONS AUTHORITY, Respondent. NATIONAL TREASURY EMPLOYEES UNION, Petitioner, v. FEDERAL LABOR RELATIONS AUTHORITY, Respondent.
Docket NumberNos. 85-1420,85-1753
Decision Date24 July 1987

Page 61

824 F.2d 61
125 L.R.R.M. (BNA) 3330, 262 U.S.App.D.C. 334
OVERSEAS EDUCATION ASSOCIATION (A Unified State Affiliate of
the National Education Association), et al., Petitioners,
v.
FEDERAL LABOR RELATIONS AUTHORITY, Respondent.
NATIONAL TREASURY EMPLOYEES UNION, Petitioner,
v.
FEDERAL LABOR RELATIONS AUTHORITY, Respondent.
Nos. 85-1420, 85-1753.
United States Court of Appeals,
District of Columbia Circuit.
Argued Jan. 27, 1987.
Decided July 24, 1987.

Page 62

Petitions for Review of Orders of the Federal Labor Relations authority.

Richard J. Hirn, Washington, D.C., for petitioners in No. 85-1420. Cary P. Sklar, with whom Lois G. Williams, Washington, D.C., was on the brief for petitioner in No. 85-1753.

Ruth E. Peters, Sol., and William E. Persina, Deputy Sol., Federal Labor Relations Authority, with whom Steven H. Svartz, Deputy Sol., and William R. Tobey, Atty., Federal Labor Relations Authority, Washington, D.C., were on the briefs, for respondents.

Before WALD, Chief Judge, and STARR and DAVIS *, Circuit Judges.

Opinion for the Court filed by Circuit Judge STARR.

Opinion concurring in the judgment in part and dissenting in part filed by Circuit Judge DAVIS.

STARR, Circuit Judge:

These two cases present similar issues concerning the scope of federal court jurisdiction over decisions by the Federal Labor Relations Authority reviewing arbitral awards pursuant to a collective bargaining agreement. In both cases, the FLRA moved to dismiss the petition for review on the ground that the court lacks jurisdiction under 5 U.S.C. Sec. 7123(a)(1) (1982). Applying a jurisdictional analysis previously embraced by our colleagues in the Second, Fourth, Ninth, and Eleventh Circuits, we conclude that jurisdiction lies in only one of the two cases. Specifically, we lack jurisdiction in No. 85-1753, concerning the National Treasury Employees Union (NTEU); however, jurisdiction does lie in No. 85-1420, concerning the Overseas Education Association (OEA). These conclusions render it necessary to reach the merits only in OEA, as to which we are persuaded, for reasons set forth in the latter part of this opinion, that the case should be remanded to the Authority.

I
A

Both petitions center around the scope of the judicial review provision of the Federal Service Labor-Management Relations Statute, 5 U.S.C. Sec. 7101 et seq. (1982 & Supp. III 1985). The Statute establishes essentially a two-track system for resolving labor disputes. Under the first route, a party

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subjected to an unfair labor practice, as defined in section 7116, can file a charge with the Authority's General Counsel, who must investigate and determine whether a complaint should issue. See 5 U.S.C. Sec. 7118(a). 1 If a complaint is issued, then the matter is adjudicated by the FLRA. Its ensuing decision is, in turn, subject to judicial review. Id. Sec. 7123.

The second route involves the collective bargaining agreement. Section 7121 of the statute directs that such agreements include grievance procedures. The Act further mandates that any dispute not satisfactorily resolved through the negotiated grievance procedure is subject to binding arbitration, which may be invoked by either party. Id. Sec. 7121(b)(3)(C). The arbitrator's decision can then be reviewed by the FLRA pursuant to section 7122. Importantly, judicial review of the FLRA's determination in such cases is generally foreclosed by section 7123. That section provides for judicial review only for orders other than those under "section 7122 of this title (involving an award by an arbitrator), unless the order involves an unfair labor practice under section 711 of this title." 5 U.S.C. Sec. 7123(a) (emphasis added). 2 In other words, the statute as a general matter removes FLRA decisions reviewing arbitral awards from judicial review, but carves out an exception of decisive relevance to the cases at hand--arbitral decisions are to be subjected to judicial scrutiny only when the FLRA's order "involves an unfair labor practice under section 711 of this title." Id.

The rationale for circumscribed judicial review of such cases is not hard to divine. It is firmly grounded in the strong Congressional policy favoring arbitration of labor disputes and accordingly granting arbitration results substantial finality. See id. Sec. 7122 (FLRA review of arbitration awards is limited; in absence of exception, arbitral award "shall be final and binding"). The pertinent legislative history indicates that "[i]n light of the limited nature of the Authority's review," Congress found it "inappropriate for there to be subsequent review by the court of appeals in such matters." H.R.Conf.Rep. No. 1717, 95th Cong., 2d Sess. 153, reprinted in 1978 U.S.Code Cong. & Ad.News 2723, 2860.

B

Under this dual system, some labor disputes are capable of following either track; a particular action may be capable of characterization as either a statutory unfair labor practice or a violation of the collective bargaining agreement. That is, while an aggrieved party could often invoke the statutory process of the grievance process by alleging a statutory unfair labor practice, 3 the party could choose to characterize

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the same conduct as a violation of the collective bargaining agreement and invoke the grievance procedures on that ground. This type of situation will present itself, for example, when the collective bargaining agreement mirrors the statutory provisions, as the agreement in NTEU does. See NTEU Reply Brief at 1-3. Congress recognized this dual possibility and left the route selection to the discretion of the aggrieved party, while at the same time mandating that selection of one route precluded use of the other. To this end, section 7116(d) directs that "issues which can be raised under a grievance procedure may, in the discretion of the aggrieved party, be raised under the grievance procedure or as an unfair labor practice under [section 7116], but not under both procedures." Id. Sec. 7116(d). 4

Both routes offer one level of review--the statutory route provides for judicial review of the FLRA's decision and the grievance route provides for FLRA review of the arbitrator's decision. The difference between the two routes--and the central issue in both of the cases before us--is that the grievance route precludes judicial review, unless, again, the Authority's order "involves an unfair labor practice under section 711." Id. Sec. 7123(a)(1). It is clear that if a dual-natured type of complaint were pursued as a statutory unfair labor practice, any FLRA order would be subject to judicial review under section 7123(a)(1), even if the aggrieved party chose to utilize the grievance/arbitration route. The precise issue presented by these two cases is whether a complaint with this potential dual nature which is pursued along the grievance/arbitration route as a violation of the collective bargaining agreement, not the statute, is nonetheless subject to judicial review because, in the words of section 7123(a)(1), it "involves an unfair labor practice under section 711."

C

Our interpretive task begins, as always, with the language of the statute. See, e.g., United States v. Hohri, --- U.S. ----, ----, 107 S.Ct. 2246, 2250, 96 L.Ed.2d 51 (1987); Landreth Timber Co. v. Landreth, 471 U.S. 681, 685, 105 S.Ct. 2297, 2301-02, 85 L.Ed.2d 692 (1985); American Tobacco Co. v. Patterson, 456 U.S. 63, 68, 102 S.Ct. 1534, 1537, 71 L.Ed.2d 748 (1982); Consumer Products Safety Commission v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100 S.Ct. 2051, 2056, 64 L.Ed.2d 766 (1980); Vanguard Interstate Tours, Inc. v. ICC, 735 F.2d 591, 597 (D.C.Cir.1984) (quoting GTE Sylvania, Inc., 447 U.S. at 108, 100 S.Ct. at 2056); Symons v. Chrysler Corp. Loan Guarantee Bd., 670 F.2d 238, 241 (D.C.Cir.1981). Section 7123(a)(1) provides in relevant part as follows:

(a) Any person aggrieved by any final order of the Authority other than an order under--

(1) section 7122 of this title (involving an award of an arbitrator), unless the order involves an unfair labor practice under section 711 of this title,

* * *

may ... institute an action for judicial review.

The effect of this provision, as we explained above, is to make FLRA decisions reviewing arbitral awards judicially reviewable

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only if they "involve" a statutory unfair labor practice. Two features of the statutory language bear emphasis.

First, section 7123(a)(1) identifies precisely what type of unfair labor practices confer jurisdiction on the federal courts. The FLRA order must deal with an unfair labor practice "under" the Act, or more precisely, "under" section 7116. Indeed, it seems somewhat anomalous to have "unfair labor practices" under anything other than the Act. "Unfair labor practice" is, after all, a statutory term of art; what constitutes an "unfair labor practice" is established by statute. See 5 U.S.C. Sec. 7116(a), (b). Nonetheless, the unions in the two cases before us argue, to varying degrees, that "unfair labor practices" do in fact exist outside the statute. In essence, they contend that their collective bargaining agreements have incorporated the statutory unfair labor practices, such that "unfair labor practice" has taken on a more generic meaning, outside its statutory origins. We need not consider whether the term "unfair labor practice," standing alone, could ever contemplate something other than an unfair labor practice as defined in subsections (a) and (b) of section 7116. For in the situation before us, Congress has removed any cause for doubt on such a point by including within section 7123(a)(1) a highly specific cross reference to a provision of the Act, expressly contemplating only the unfair labor practices therein defined.

Second, the precision Congress employed in pinpointing exactly which of a potentially broad class of "unfair labor practices" suffice to confer federal court jurisdiction is counterbalanced by Congress' relative...

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34 practice notes
  • Griffith v. Federal Labor Relations Authority, No. 86-5720
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • March 25, 1988
    ...that Sec. 7123 bars circuit court review of arbitral decisions not involving unfair labor practices. Overseas Education Ass'n v. FLRA, 824 F.2d 61, 63-69 (D.C.Cir.1987); United States Dept. of Justice v. FLRA, 792 F.2d 25, 28 (2d Cir.1986); Tonetti v. FLRA, 776 F.2d 929, 931 (11th Cir.1985)......
  • Nat'l Treasury Emps. Union v. Fed. Labor Relations Auth., No. 12–1199.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • June 17, 2014
    ...of the arbitrator's award plainly involves an unfair labor practice allegedly committed by the IRS, see Overseas Educ. Ass'n v. FLRA, 824 F.2d 61, 71 (D.C.Cir.1987) [754 F.3d 1039](case “involves” unfair labor practice if unfair labor practice is “either an explicit ground for or [is] neces......
  • U.S. v. McGoff, No. 87-3005
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • October 13, 1987
    ...Comm'n v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100 S.Ct. 2051, 2056, 64 L.Ed.2d 766 (1980); Overseas Education Association v. FLRA, 824 F.2d 61, 64 (D.C.Cir.1987). We therefore begin by setting out the precise terminology of one of the two relevant statutory provisions, section 618(e) of ......
  • Nat'l Sec. Counselors v. Cent. Intelligence Agency, Civil Action No. 12–284 (BAH).
    • United States
    • United States District Courts. United States District Court (Columbia)
    • March 20, 2013
    ...requesters may submit entirely duplicative requests in order to cure certain defects in their original requests. See, e.g., Spannaus, 824 F.2d at 61 (observing that requester “can simply refile his FOIA request tomorrow and restart the process” since “nothing prevents him from requesting th......
  • Request a trial to view additional results
34 cases
  • Griffith v. Federal Labor Relations Authority, No. 86-5720
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • March 25, 1988
    ...that Sec. 7123 bars circuit court review of arbitral decisions not involving unfair labor practices. Overseas Education Ass'n v. FLRA, 824 F.2d 61, 63-69 (D.C.Cir.1987); United States Dept. of Justice v. FLRA, 792 F.2d 25, 28 (2d Cir.1986); Tonetti v. FLRA, 776 F.2d 929, 931 (11th Cir.1985)......
  • Nat'l Treasury Emps. Union v. Fed. Labor Relations Auth., No. 12–1199.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • June 17, 2014
    ...of the arbitrator's award plainly involves an unfair labor practice allegedly committed by the IRS, see Overseas Educ. Ass'n v. FLRA, 824 F.2d 61, 71 (D.C.Cir.1987) [754 F.3d 1039](case “involves” unfair labor practice if unfair labor practice is “either an explicit ground for or [is] neces......
  • U.S. v. McGoff, No. 87-3005
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • October 13, 1987
    ...Comm'n v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100 S.Ct. 2051, 2056, 64 L.Ed.2d 766 (1980); Overseas Education Association v. FLRA, 824 F.2d 61, 64 (D.C.Cir.1987). We therefore begin by setting out the precise terminology of one of the two relevant statutory provisions, section 618(e) of ......
  • Nat'l Sec. Counselors v. Cent. Intelligence Agency, Civil Action No. 12–284 (BAH).
    • United States
    • United States District Courts. United States District Court (Columbia)
    • March 20, 2013
    ...requesters may submit entirely duplicative requests in order to cure certain defects in their original requests. See, e.g., Spannaus, 824 F.2d at 61 (observing that requester “can simply refile his FOIA request tomorrow and restart the process” since “nothing prevents him from requesting th......
  • Request a trial to view additional results

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