Lead Opinion
Opinion for the Court filed by Circuit Judge SENTELLE.
Dissenting opinion filed by Circuit Judge TATEL.
The Association of Civilian Technicians, New York State Council (“the Union” or “the Association”), petitions for review of an order of the Federal Labor Relations Authority stemming from a grievance filed by the Union after the New York Division of Military and Naval Affairs implemented a state-wide smoking ban at its facilities. The parties could not resolve the grievance, so the Union submitted it to binding arbitration in accordance with the terms of its collective bargaining agreement and the Federal Service Labor-Management Relations Statute, 5 U.S.C. § 7101 et seq. The arbitrator denied the grievance and thе Union filed exceptions to her award with the Authority. The Authority denied the exceptions in the order at issue here. Because we find that we lack jurisdiction to review the Authority’s order, we dismiss.
In 2003, New York amended its Clean Indoor Air Act to prohibit indoor smoking in all “places of employment,” including workplaces of “the legislative, executive and judicial branches of state government and any political subdivision of the state.” N.Y. Pub. Health Law § 1399-o(l), -n(2). Accordingly, the New York Division of Military and Naval Affairs (“DMNA”) issued a new smoking policy that prohibited all smoking in National Guard facilities in New York.
The Association of Civilian Technicians, New York State Council, which represents the civil technicians working at the Guard facilities, filed a grievance charging that the DMNA had violated their collective bargaining agreement by failing to negotiate the terms of the new smoking policy. When the grievance was not resolved, the Union invoked its right to binding arbitration and added an allegation that DMNA’s unilateral implementation of the policy constituted an unfair labor practice because it was taken in clear and patent breach of the collective bargaining agreement’s negotiаtion provisions.
The parties were unable to stipulate to the issues before the arbitrator. She reviewed their proposed issues and found that, “[a]t the heart of this case is a dispute over the interpretation and application of the language of the Parties’ Collective Bargaining Agreement.” She then framed the issues as “Did the Agency violate the Collective Bargaining Agreement when it issued a new smoking policy letter on 23 July 2003?” and “If so, what should the remedy be?” She concluded that the DMNA had not violated the collective bargaining agreement because the smoking ban was a statutory requirement and therefore did not fall within the agreement’s requirement that rules “within the purview” of the DMNA be negotiated.
The Union filed exceptions to the arbitral decision with the Federal Labor Relations Authority arguing, in pertinent part, that the arbitrator exceeded her authority when she failed to address its unfair labor practice allegations. The Authority denied the Union’s exceptions, finding that the arbitrator had not erred in framing the issues as arising solely under the collective bargaining agreement. Under Authority precedent, where parties do not stipulate to the issuеs before the arbitrator, the arbitrator has broad discretion to frame the issues. Ass’n of Civilian Technicians, N.Y. State Council,
II. Analysis
We lack jurisdiction to review the Authority’s order affirming the arbitral decision because it does not “involve[ ] an unfair labor practice under section 711[6]” of the Federal Service Labor-Management Relations Statute. 5 U.S.C. § 7123(a)(1).
The Federal Service Labor-Management Relations Statute limits our review to orders of the Authority which involve unfair labor practices in order to balance a “strong Congressional policy favoring arbitration of labor disputes,” Overseas Educ. Ass’n,
Reading the exception broadly, then, would be contrary to “the proarbitration рolicy Congress articulated in passing the Act.” OEA,
The order need not address an unfair labor practice “on the merits” to “involve” an unfair labor practice, but it does need to include some “sort of substantive evaluation of a statutory unfair labor practice.” OEA,
On the other hand, we have found that an order did not “involve” an unfair labor practice where the “arbitrator’s decision clearly frame[d] the issue as one arising solely under the parties’ collective bargaining agreements” and the Authority’s order “repeat[ed] the arbitrator’s statement of the issue as one sounding in contract.” U.S. Dep’t of Interior v. FLRA,
The Authority’s order in this case does not “involve” an unfair labor practice under our precedent. The Authority did not engage in any substantive discussion of the Union’s unfair labor practice claim in its order, but instead explicitly found that the arbitrator was justified in concluding that the substance of the unfair labor practice claim was not part of the dispute. As in DOI, the “arbitrator’s decision clearly frames the issue as one arising solely under the parties’ collective bargaining agreements,” the “arbitrator analyzes the case as an alleged breach of contract,” and the Authority’s order “repeats the arbitrator’s statement of the issue as one sounding in contract.” DOI,
We note that if the Union wished to protect its right to judicial review of any possible unfair labor practice claims, it could have utilized the first track provided by the Statute which leads to judicial review. Because it instead decided to proceed through the second 'track, it is bound by the Statute’s ban on judicial review unless the Authority’s order “involves” an unfair labor practice.
The Union fails in its attempt to characterize this order as involving an unfair lаbor practice by pointing to its effect on the Union’s unfair labor practice allegations. While the Authority ensured that the Union’s unfair labor practice claim will not be considered on its merits by affirming the arbitrator’s framing of the issues, our caselaw is clear that the Authority’s order itself must have some “bearing upon the law of unfair labor practices” in order to qualify as an order that “involve[s] an unfair labor practice.” AFGE, Local 2510,
III. Conclusion
For the reasons discussed above, we dismiss the petition for lack of jurisdiction.
Notes
Although the statute refers to "section 7118,” the reference "has been recognized to be an error; the correct reference is to section 7116.” AFGE, Local 2510 v. FLRA,
Dissenting Opinion
dissenting:
The court concludes that we lack jurisdiction to hear the union’s challenge to a Federal Labor Relations Authority order that disposed of the union’s unfair labor practice claim based solely on an arbitrator’s unexplained failure to resolve that claim during the grievance process. Because I believe that the Authority’s order “involves an unfair labor practice” within the meaning of section 7123(a)(1) of the Federal Service Labor-Management Relations Statute, 5 U.S.C. § 7101 et seq., and that the court’s interpretation to the contrary finds no support in our precedent, I respectfully dissent.
I.
As the court correctly observes, thе statute establishes a two-track system in which an aggrieved union can either file an unfair labor practice charge with the Authority’s General Counsel or submit a grievance to binding arbitration, but may not do both. See Overseas Educ. Ass’n v. FLRA
When the union appealed to the Authority, arguing that the arbitrator improperly ignored its unfair labor practice claim, the employer countered that the arbitrator had in fact addressed the alleged unfair labor practices, but had simply found against the union. Ass’n of Civilian Technicians, N.Y. State Council,
Still seeking some resolution to its unfair labor practice claim, the union moved for reconsideration, arguing that the statute provides for (1) a unilateral right to have an unfair labor practice claim resolved through the grievance process and (2) appeals to both the Authority and the U.S. Court of Appeals. The Authority denied the motion, again citing its general policy of deferring to an arbitrator’s framing of the issues absent an employer stipulation. Ass’n of Civilian Technicians, N.Y. State Council,
The union petitioned for review, arguing that the Authority had denied what the statute expressly requires: resolution of its unfair labor practice claim. The court now dismisses the union’s petition for lack of jurisdiction under section 7123(a)(1), reasoning that the Authority’s order merely “involves rules applicable to arbitration” that happened to result “in the unfair la
II.
Section 7123(a)(1) allows this court to hear appeals from Authority decisions reviewing arbitral awards if the award “involves an unfair labor practice,” a standard we have addressed in some depth on three separate occasions. In OEA, we considered two separate Authority orders, finding ourselves with jurisdiction over one order because it “necessarily implicated” an unfair labor practice claim, but without jurisdiction over the other because the union had pursued its claim on a contract theory.
First, as the court correctly notes, for us to have jurisdiction, a union must characterize and pursue its claim “as a statutory unfair labor practice, not as something else.” Maj. Op. at 699 (quoting OEA,
Here, the union did no such thing. It consistently characterized its claim as an unfair labor practice and pursued it as such throughout the grievance process. As noted above, the union began its prehearing brief with its unfair labor practice allegations. In her statement of the parties’ positions, the arbitrator spent two paragraphs repeating those allegations. The employer certainly believed the union had raised the claim, even arguing that the arbitrator had actually decided it. The union reasserted its unfair labor practice claim in its exceptions to the arbitral award and pursued it again in its motion for reconsideration. In short, the union consistently characterized the employer’s conduct “as a statutory unfair labor practice, not as something else.” Maj. Op. at 699 (quoting OEA,
Attempting to minimize this fact, the court analogizes this case to DOI where, as
Second, our case law makes clear that for us to have jurisdiction, the Authority’s order must “necessarily implicate[ ]” an unfair labor practice claim. OEA,
Here, the Authority’s order “necessarily implicated” the union’s unfair labor practice claim by effectively terminating it. Put another way, before the Authority issued its order, the union had a viаble unfair labor practice claim, albeit one that the arbitrator had inexplicably ignored. After the Authority ruled, however, the union’s claim was irretrievably lost. Because section 7116(d) forbids the union from re-filing its allegations with the General Counsel, the Authority’s order represents the last word on the union’s claim. See AFGE, Local 1411 v. FLRA,
To reach the opposite conclusion, the court relies heavily on AFGE, Local 2510, but that case provides a telling contrast to the issue presented here. In AFGE, Local 2510, the arbitrator had decided the union’s unfair labor practice claim in the union’s favor, and the employer declined to challenge that ruling before the Authority, instead appealing only the arbitrator’s award of attorneys’ fees to the union.
Finally, as the court points out, we will review an Authority’s order when the “substance of the unfair labor practice” is “ ‘discussed in some way in, or [is] some part of, the Authority’s order.’ ” Maj. Op. at 699 (quoting AFGE, Local 2510,
Even if we were to address the alleged unfair labor practices, we would nonetheless find that the denial of the grievance was not deficient. Specifically, the Arbitrator found that the [employer] did not breach the agreement. Authority precedent establishes that unless there is a breach of an agreement, there can be no repudiation in violation of the Statute, as was alleged by the union at arbitration. See, e.g., Dep’t of the Air Force, 375th Mission Support Squadron, Scott Air Force Base, Ill.,51 F.L.R.A. 858 , 862 (1996) (the first element that must be established to support an allegation of repudiation in violation of the Statute is that the respondent’s actions constituted a breach of the agreement that was clear and patent). In addition, the record establishes that the Arbitrator enforced lawful, agreed-upon limits on the obligation to bargain and that, consequently, the [employer]^ actions did not constitute a failure to bargain. See AFGE Local 3529,52 F.L.R.A. 1313 , 1319-20 (1997).
ACT,
Ignoring the Authority’s order denying rehearing, the court demands more. Quoting half a sentence from OEA, it explains that to confer jurisdiction, the Authority’s order “does need to include some ‘sort of substantive evaluation of a statutory unfair labor practice.’ ” Maj. Op. at 699 (quoting OEA,
ra.
For the foregoing reasons, I would find section 7123(a)(1) jurisdiction and go on to review the Authority’s conclusion that an arbitrator has no obligation to resolve a union’s unfair labor practice claim unless an employer stipulates to that claim. The union argues that under a plain reading of the statute, “a union that raises an [unfair labor practice] claim as a grievance has a unilateral right to demand that the claim be resolved by binding arbitration.” Pet’r’s Opening Br. 24.
The union’s textual argument proceeds as follows. Section 7116(d) expressly allows unions to raise unfair labor practice claims in grievance procedures, and section 7121(a)(1), in turn, requires those procedures to be processes for “resolving grievances” (emphasis added). Then, citing section 7121(b)(l)(C)(iii), the union argues that because either party to a dispute may demand that “any grievance not satisfactorily settled ... be subject to binding arbitration,” the statute grants unions the right to have unfair labor practice claims “resolved” through arbitration. According to the union, allowing а statutory claim to vanish if an employer refuses to stipulate to it conflicts with the statute because the grievance procedure would then fail to “resolve” the grievance.
The union reads the statute correctly. “Resolve” means “to reach a decision about” or “settle.” Webster’s Third New International Dictionary 1933 (1993). Under the Authority’s “no obligation” rule, however, the grievance process may end without deciding a union’s unfair labor practice claim or settling it in any meaningful sense. The claim can simply evaporate.
The Authority offers no response to the uniоn’s textual argument. Instead, it argues that not all unfair labor practice claims are ultimately “resolved” under the statute. As the Authority points out, if the General Counsel declines to issue a complaint upon a union’s request, the issue never reaches the Authority for review. The statute, however, requires the General Counsel to give the union a written statement of reasons for declining to issue a complaint. See 5 U.S.C. § 7118(a)(1) (“In any case in which the General Counsel does not issue a complaint because the charge fails to state an unfair labor practice, the General Counsel shall provide the person making the charge a written statement of the reasons for not issuing a complaint.”). Under the Authority’s rule, unions choosing to pursue their unfair labor practice claims through arbitration—their right under the statute—can be denied even this.
At bottom, the Authority argues that the arbitrator resolved the union’s claim by ignoring it. Because I believe the statute requires more, I would grant the union’s petition for review and remand the case to the Authority with instructions to return it to the arbitrator for a decision on the merits of the union’s unfair labor practice claim.
IY.
Contrary to the court’s view—and to return to the jurisdictional issue—my disposition would further Congress’s strong pro-arbitration policy by guaranteeing unions some resolution of their unfair labor practice claims through grievance procedures. The court’s decision, by contrast,
Finally, my proposed disposition, unlike thе court’s decision, would ensure “a single, uniform body of case law concerning unfair labor practices.” AFGE, Local 2510,