Warren v. Local 1759, American Federation of Government Employees

• Decision Date: 05 July 1985
• Docket Number: No. 84-8377,84-8377
• Citation: 764 F.2d 1395
• Parties: 119 L.R.R.M. (BNA) 3127 Walter A. WARREN, Plaintiff-Appellant, v. LOCAL 1759, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1395

764 F.2d 1395

119 L.R.R.M. (BNA) 3127

Walter A. WARREN, Plaintiff-Appellant, v. LOCAL 1759, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES Defendant-Appellee.

No. 84-8377.

United States Court of Appeals Eleventh Circuit.

July 5, 1985.

Glenn Taubman, Springfield, Va., for plaintiff-appellant.

Stuart A. Kirsch, Am. Federation of Government Employees Fifth District Staff Counsel, College Park, Ga., for defendant-appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before KRAVITCH and CLARK, Circuit Judges, and PECK ^*, Senior Circuit Judge.

JOHN W. PECK, Senior Circuit Judge:

This case is before the court upon an appeal from the district court order granting the appellee's motion to dismiss for lack of subject matter jurisdiction. Appellant Walter Warren is a civilian employed by the Department of the Army at Fort McPherson, Georgia. Local 1759, American Federation of Government Employees, is the exclusive collective bargaining representative of a unit of civilian federal employees including Warren.

In April 1983, Warren was suspended without pay for five days based upon allegations of misconduct. He disagreed with the disciplinary action and invoked the contractual grievance procedures which had been negotiated by Local 1759 and his employer. After exhausting the initial grievance procedures, he asked Local 1759 to take his grievance to arbitration, but the union refused. Warren then filed an unfair labor practice charge with the Federal Labor Relations Authority ("FLRA") against the union. The FLRA Regional Director refused to issue a complaint, stating that the charge had been investigated and it did not appear that further proceedings were warranted. Appellant then appealed to the FLRA General Counsel, who affirmed the Regional Director's refusal to issue a complaint. In May 1983, Warren was again suspended; once more he went through the procedure outlined above. As before, the FLRA Regional Director refused to issue a complaint and the decision was affirmed by the FLRA General Counsel.

Warren then initiated this litigation by filing a complaint in the United States District Court for the Northern District of Georgia, alleging that Local 1759 had breached its duty of fair representation by capriciously and with hostility refusing to take his grievances to arbitration because he was not a member of Local 1759. Federal court jurisdiction was predicated upon 28 U.S.C. Sec. 1331. The district court dismissed Warren's complaint, holding that the court lacked subject matter jurisdiction because the FLRA had exclusive jurisdiction over the controversy. For the reasons set forth below, we affirm.

The sole issue before this court is whether, under Title VII of the Civil Service Reform Act (the Labor-Management and Employment Relation statute), 5 U.S.C. Sec. 7101 et seq., a federal employee can invoke the jurisdiction of the federal district courts to adjudicate a duty of fair representation action against the employee's exclusive bargaining representative. Title VII of the Civil Service Reform Act ("CSRA") explicitly governs labor-management relations in the federal sector. Section 7114(a)(1) imposes a duty of fair representation upon a labor organization which is the exclusive representative of the federal employees in its unit: "An exclusive representative is responsible for representing the interests of all employees in the unit it represents without discrimination and without regard to labor organization membership." In the present case, Warren contends that Local 1759 breached its Sec. 7114(a)(1) duty of fair representation by failing to proceed to arbitration. Section 7116 sets forth actions which constitute unfair labor practices for purposes of the CSRA. As the district court noted, the breach alleged by Warren would constitute an unfair labor practice under Sec. 7116(b). ¹

In Sec. 7105 of the CSRA, Congress gives the FLRA the powers and duties to take necessary and appropriate actions to effectively administer the provisions of the CSRA. Section 7105 confers upon the FLRA the authority to conduct hearings and resolve complaints of unfair labor practices. Section 7118 requires the General Counsel of the FLRA to investigate charges of unfair labor practices and to either issue a complaint or provide the charging party with a written statement of the reasons for not issuing a complaint. The district court, quoting from National Federation of Federal Employees, Local 1263 v. Commandant, Defense Language Institute, 493 F.Supp. 675, 679 (N.D.Cal.1980) ("NFFE"), noted that under the CSRA Congress explicitly empowers the federal courts to act in three instances:

First, it makes judicial review of final orders of the FLRA available only in the appropriate federal circuit court of appeals. 5 U.S.C. Sec. 7123(a). Second, it provides that the FLRA may petition a circuit court of appeals for enforcement of its orders and for appropriate temporary relief of restraining order. 5 U.S.C. Sec. 7123(b). Third, pursuant to Sec. 7123(d), the FLRA, upon issuing an unfair labor practice complaint, may petition a federal district court for temporary injunctive relief. 5 U.S.C. Sec. 7123(d).

The district court concluded that reading the CSRA as a whole shows that Congress intended for the statutory procedure to be deemed exclusive. Appellant, however, argues that federal courts have subject matter jurisdiction to hear duty of fair representation lawsuits brought by federal employees. Appellant states that prior to the enactment of the CSRA in 1978, under both the National Labor Relations Act ("NLRA") and the Railway Labor Act, employees have used the "general federal question jurisdiction" of 28 U.S.C. Sec. 1331 to litigate duty of fair representation claims against their unions in federal courts. He contends that nothing in the CSRA, either explicitly or implicitly, evinces a Congressional intent to abrogate the federal employees' right to litigate duty of fair representation claims in federal courts.

Thus, our analysis first focuses upon the question of Congressional intent. Because Congress patterned the FLRA on the National Labor Relations Board ("NLRB") in many respects, ² a review of judicial precedents of private sector law which had arisen under the NLRA is in order.

In the instant case, the district court found significant the fact that although Congress patterned the FLRA in many respects after the NLRB, Congress did not enact a provision in the CSRA that parallels Sec. 301 ³ of the LMRA. Section 301 provides in pertinent part:

Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce ... or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties.

...

Thus, Sec. 301 confers jurisdiction of the district court over suits based upon collective bargaining agreements in the private sector. The district court stated:

In that Congress did not enact in the FLRA a provision analogous to Section 301 of the LMRA and because Congress explicitly empowers the federal courts to act in three situations applicable to this case, the Court declines to carve out an exception to the preemption doctrine as urged by the plaintiff.

In Yates v. United States Soliders' and Airmen's Home, 533 F.Supp. 461 (D.D.C.1982), the court analyzed the legislative history of the CSRA and discussed the significance of the absence of a Sec. 301 analogue:

The failure of Congress to provide a clear jurisdictional grant to district courts over disputes involving public sector labor agreements is particularly telling when compared with the approach taken by Congress in the private sector....

The Civil Service Reform Act of 1978 contains no provision analogous to Sec. 301. Not only is the Act silent on the point, but the legislative record indicates that Congress did, in fact, consider and reject a proposed provision similar to Sec. 301 when it enacted the Act. [NFFE, supra.], 493 F.Supp. 675, 681 n. 13 (N.D.Cal.1980).

533 F.Supp. at 464-5.

The court concluded "that the absence of a jurisdictional grant in the Act is a clear indication that Congress intended to bar actions to enforce collective bargaining agreements in the district courts." 533 F.Supp. at 463.

Similarly, in Columbia Power Trades Council v. U.S. Department of Energy, 671 F.2d 325 (9th Cir.1982), the court reached the same conclusion:

The only provision made for judicial jurisdiction appears in 5 U.S.C. Sec. 7123. An aggrieved party may appeal the Authority's action to a court of appeals, the Authority may petition a court of appeals for enforcement of its orders, and the Authority may seek an injunction in a district court after it has issued a complaint. At no point does the Act entitle a party to petition a district court for relief. Given the broad purpose of the Act to meet the special requirements of government, the leadership role of the Authority, and the limited role of the judiciary in this statutory scheme, it is manifestly the express desire of Congress to create an exclusive statutory scheme. (footnotes omitted)

533 F.Supp. at 463.

Appellant argues that Congress' failure to enact a Sec. 301 analogue in the CSRA is irrelevant because the separate jurisdictional grant in Sec. 301 has never served as the jurisdictional basis of a duty of fair representation claim. He cites the seminal case of Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967), in which an employee with medical problems was discharged from a job requiring heavy work. The union took the grievance through the initial steps of the grievance procedure, but refused to proceed to arbitration. The employee then brought an action against union officials in state court. Before the Supreme Court, defendants made the argument, inter alia, that the state court lacked subject matter jurisdiction...