U.S. Department of the Interior v. Federal Labor Relations Authority

1 F.3d 1059
CourtCourt of Appeals for the Tenth Circuit
DecidedJuly 27, 1993
DocketNo. 92-9503
StatusPublished
Cited by6 cases

This text of 1 F.3d 1059 (U.S. Department of the Interior v. Federal Labor Relations Authority) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
U.S. Department of the Interior v. Federal Labor Relations Authority, 1 F.3d 1059 (10th Cir. 1993).

Opinion

SEYMOUR, Circuit Judge.

The United States Department of the Interior, Bureau of Reclamation, Missouri Basin Region (the Bureau), petitions this court to overturn a decision by the Federal Labor Relations Authority (FLRA) upholding an arbitration award. The arbitrator determined that the Bureau had acted unlawfully in unilaterally terminating a pay practice required by a collective bargaining agreement between the Bureau and the intervenor, the International Brotherhood of Electrical Workers, Local 1759 (the Union). The Bureau recognizes that judicial review of the FLRA’s decision is ordinarily precluded by statute. It nevertheless contends that the FLRA’s decision is erroneous and that the error rises to the level held judicially reviewable under Leedom v. Kyne, 358 U.S. 184, 79 S.Ct. 180, 3 L.Ed.2d 210 (1958), and its progeny. We disagree and dismiss for lack of jurisdiction.

The Union represents Bureau employees who negotiate their wages and premium pay provisions in accordance with section 704 of the Civil Service Reform Act (codified at 5 U.S.C. § 5343 note (1988)) and section 9(b) of the Prevailing Rate Systems Act (also codified at 5 U.S.C. § 5343 note). Most federal employees have their pay set administratively according to rates and practices prevailing in the relevant private sector. However, Congress has preserved the collective bargaining rights of a small minority of workers such as those represented here, who have historically negotiated with their employers and entered into collective bargaining agreements. See United States Info. Agency v. FLRA 895 F.2d 1449, 1451 (D.C.Cir.1990). The statutory scheme governing the resolution of labor disputes arising from these collective bargaining agreements establishes a two-track system. See American Fed’n of Gov’t Employees, Local 916 v. FLRA 951 F.2d 276, 277 (10th Cir.1991).

The aggrieved party may file a statutory unfair labor practice charge with FLRA General Counsel, who determines whether a complaint should issue. If a complaint ensues, the matter is adjudicated by FLRA, subject to judicial review in the court of appeals. On the other hand, the aggrieved party may elect instead to pursue the matter through the statutorily mandated grievance procedure established in the applicable collective bargaining agreement. If resolution by grievance fails initially, the dispute may be brought before an arbitrator, whose determination [1061]*1061is subject to final review by FLRA. A key feature of the grievance-arbitration process is that once FLRA has rendered its decision, judicial review is unavailable “unless the order involves an unfair labor practice under section 711[6] of this title.” 5 U.S.C. § 7123(a)(1). Thus, “[b]oth 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”.

Id. (citation and footnotes omitted).

In this case, the Union chose the second alternative and filed a grievance alleging that the Bureau had violated the collective bargaining agreement by unilaterally terminating Sunday premium pay during the contract term without bargaining on the issue. The arbitrator agreed and issued an award ordering the pay practice reinstated. The Bureau filed exceptions to the award with the FLRA pursuant to 5 U.S.C. § 7122(a) (1988). The FLRA upheld the award initially, 42 F.L.R.A. 55 (Oct. 10, 1991), and again on the Bureau’s motion for reconsideration, 43 F.L.R.A. 38 (Nov. 29, 1991).

The Bureau now seeks judicial review and reversal of the FLRA’s decision. The statutory provision governing review of FLRA orders entered under section 7122 provides:

Any person aggrieved by any final order of the Authority other than an order under—
(1) section 7122 of this title (involving an award by an arbitrator), unless the order involves an unfair labor practice under section 7118 of this title, or
(2) section 7112 of this title (involving an appropriate unit determination),
may, during the 60-day period beginning on the date on which the order was issued, institute an action for judicial review of the Authority’s order in the United States court of appeals in the circuit in which the person resides or transacts business or in the United States Court of Appeals for the District of Columbia.

5 U.S.C. § 7123(a) (1988) (emphasis added). It is undisputed that the FLRA order challenged here does not involve an unfair labor practice. Thus, the plain language of the statute specifically precludes our review. See, e.g., United States Dep’t of Justice v. FLRA, 981 F.2d 1339, 1342 (D.C.Cir.1993) (collecting cases).

The Bureau acknowledges that section 7123 ordinarily bars judicial review of an FLRA order such as the one at issue here, but nonetheless argues that jurisdiction is proper under the exception recognized in Leedorn v. Kyne. In Kyne, the Supreme Court upheld judicial review, despite a statutory provision intended to preclude such review, “where the National Labor Relations Board had acted ‘in excess of its delegated powei’s and contrary to a specific prohibition in the [National Labor Relations] Act.’ ” Griffith v. FLRA, 842 F.2d 487, 492 (D.C.Cir.1988) (quoting Kyne, 358 U.S. at 188, 79 S.Ct. at 183). In considering whether to proceed under Kyne, courts have emphasized that the case provides an exception of “very limited scope,” United States Dep’t of Justice, 981 F.2d at 1342, to be “invoked only in exceptional circumstances,” Greater Detroit Resource Recovery Auth. v. United States Envtl. Protection Agency, 916 F.2d 317, 323 (6th Cir.1990). As one court has pointed out, the language used in Kyne “carefully and clearly delineated the narrow scope of its holding.” Physicians Nat’l House Staff Ass’n v. Fanning, 642 F.2d 492, 495 (D.C.Cir.1980) (en banc), cert. denied, 450 U.S. 917, 101 S.Ct. 1360, 67 L.Ed.2d 342 (1981). Under the Court’s description of the order at issue in Kyne, agency action will only fall within the exception created by Kyne when the agency’s determination is “made in excess of its powers,” 358 U.S. at 185, 79 S.Ct. at 182, when the agency “disobeyed the express command of [its organic act] ... and in doing so ... acted in excess of its powers,” id. at 186-87, 79 S.Ct.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
1 F.3d 1059, Counsel Stack Legal Research, https://law.counselstack.com/opinion/us-department-of-the-interior-v-federal-labor-relations-authority-ca10-1993.