United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 19, 2006 Decided February 17, 2006
No. 05-5076
NATIONAL AIR TRAFFIC CONTROLLERS ASSOCIATION
AFL-CIO AND
PROFESSIONAL AIRWAYS SYSTEMS SPECIALISTS, AFL-CIO,
APPELLANTS
v.
FEDERAL SERVICE IMPASSES PANEL AND
FEDERAL LABOR RELATIONS AUTHORITY,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 04cv00138)
William W. Osborne, Jr. argued the cause for appellants.
With him on the briefs were Debra L. Willen, Marguerite L.
Graf, and Michael D. Derby.
James F. Blandford, Attorney, Federal Labor Relations
Authority, argued the cause for appellees. With him on the brief
was William R. Tobey, Acting Solicitor.
2
Andrew Steinberg, Chief Counsel, Federal Aviation
Administration, argued the cause for amicus curiae Federal
Aviation Administration in support of the appellees. With him
on the brief were Peter D. Keisler, Assistant Attorney General,
U.S. Department of Justice, Kenneth L. Wainstein, U.S.
Attorney, William G. Kanter and Edward Himmelfarb,
Attorneys, Jeffrey A. Rosen, General Counsel, U.S. Department
of Transportation, and Paul M. Geier, Assistant General
Counsel.
Before: GINSBURG, Chief Judge, RANDOLPH, Circuit Judge,
and EDWARDS, Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge
EDWARDS.
EDWARDS, Senior Circuit Judge: Congress established a
distinct regulatory framework for collective bargaining between
federal agencies and their employees under the Federal Service
Labor-Management Relations Statute, 5 U.S.C. §§ 7101-7135
(2000). Within this statutory framework, the Federal Service
Impasses Panel (“FSIP,” “Impasses Panel,” or “Panel”) serves
as a forum “of last resort in the speedy resolution of disputes”
between a federal agency and the exclusive representatives of its
employees “after negotiations have failed.” Council of Prison
Locals v. Brewer, 735 F.2d 1497, 1501 (D.C. Cir. 1984).
Therefore, decisions of the FSIP generally are not subject to
direct judicial review. Id. at 1498. A federal district court may
exercise jurisdiction to review a Panel order only “in exceptional
circumstances” as defined by Leedom v. Kyne, 358 U.S. 184
(1958), and its progeny. Brewer, 735 F.2d at 1500-01.
In 2003, contract negotiations between the Federal Aviation
Administration (“FAA”) and two of the unions representing its
employees, the National Air Traffic Controllers Association,
AFL-CIO (“NATCA”), and the Professional Airways Systems
Specialists, AFL-CIO (“PASS”), broke down. In July 2003, the
3
Unions sought the assistance of the Panel. However, the FSIP
declined to exercise jurisdiction over the bargaining impasses
because, after receiving the parties’ submissions, the Panel was
uncertain whether it had the authority to resolve the disputes.
The Unions then filed suit against the Panel and the Federal
Labor Relations Authority (“FLRA” or “Authority”) in District
Court seeking declaratory and injunctive relief pursuant to
Leedom. The District Court granted summary judgment to the
defendants, concluding that it lacked jurisdiction to review the
Panel’s decision not to assert jurisdiction over the parties’
collective bargaining disputes. The Unions have appealed. The
FAA appears as amicus curiae in support of the Impasses Panel
and the FLRA. We affirm.
Leedom provides an extremely limited exception to the
nonreviewability of FSIP orders. In this case, the Unions have
failed to demonstrate either of the predicates necessary for
Leedom jurisdiction: The specific statutory provision identified
by the Unions is not sufficiently “clear and mandatory” to
require the Panel to exercise jurisdiction over these disputes,
Leedom, 358 U.S. at 188, and the Unions have failed to show
that, without the District Court’s exercise of jurisdiction, they
have no “meaningful and adequate means of vindicating [their]
statutory rights,” Bd. of Governors, Fed. Reserve Sys. v. MCorp
Fin., Inc., 502 U.S. 32, 43 (1991).
I. BACKGROUND
A. The FSIP
The Federal Service Labor-Management Relations Statute,
5 U.S.C. §§ 7101-7135 (“Chapter 71”), which was passed as
part of the Civil Service Reform Act of 1978, governs “[l]abor
relations within the federal civil service.” Dep’t of Def. v.
FLRA, 659 F.2d 1140, 1144 (D.C. Cir. 1981). The FLRA is
primarily responsible for administering the statute. 5 U.S.C.
§ 7105. Under Chapter 71, a federal agency and the exclusive
4
bargaining representatives of that agency’s employees are
required to negotiate in “good faith” over the subjects covered
by the duty to bargain. See 5 U.S.C. § 7114(a)(4). Where
negotiations fail to produce an accord, the statute provides for
alternative dispute resolution processes. First, the parties may
use the services of the Federal Mediation and Conciliation
Service. 5 U.S.C. § 7119(a). Should mediation “fail to resolve
a negotiation impasse . . . either party may request” the services
of the FSIP, 5 U.S.C. § 7119(b), “an entity within the Authority,
the function of which is to provide assistance in resolving
negotiation impasses between agencies and exclusive
representatives” of their employees, 5 U.S.C. § 7119(c)(1).
“[T]he parties may [also] agree to adopt a procedure for binding
arbitration of the negotiation impasse, but only if the procedure
is approved by the Panel.” 5 U.S.C. § 7119(b)(2).
Upon submission of a request for Panel assistance, the
Panel “shall promptly investigate any impasse presented to it.”
5 U.S.C. § 7119(c)(5)(A). Once it has investigated, “[t]he Panel
shall consider the impasse and shall either – (i) recommend to
the parties procedures for the resolution of the impasse; or (ii)
assist the parties in resolving the impasse through whatever
methods and procedures . . . it may consider appropriate to
accomplish the purpose of this section.” 5 U.S.C.
§ 7119(c)(5)(A). The Panel has published regulations
implementing § 7119. See 5 C.F.R. §§ 2470.1-2473.1 (2005).
As relevant here, the regulations provide:
(a) Upon receipt of a request for consideration of an
impasse, the Panel or its designee will promptly
conduct an investigation, consulting when necessary
with the parties and with any mediation service
utilized. After due consideration, the Panel shall
either:
(1) Decline to assert jurisdiction in the event that it
finds that no impasse exists or that there is other
5
good cause for not asserting jurisdiction, in whole
or in part, and so advise the parties in writing,
stating its reasons; or
(2) Assert jurisdiction and
(i) Recommend to the parties procedures for the
resolution of the impasse; and/or
(ii) Assist the parties in resolving the impasse
through whatever methods and procedures the
Panel considers appropriate.
5 C.F.R. § 2471.6(a)(1), (2).
B. Congressional Restructuring of the FAA in the 1990s
The FAA argues here, as before the Panel, that legislation
passed by Congress in the mid-1990s withdrew the FSIP’s
jurisdiction as the final arbiter over disputes that arise between
the FAA and its employees over compensation and benefits.
First, with the enactment of the 1996 Department of
Transportation and Related Agencies Appropriations Act (“1996
DOT Act”), Congress directed the FAA to establish its own
personnel management system, exempt from many of the
provisions of federal personnel laws. See 49 U.S.C. § 40122(g)
(2000). Section 40122(g) is derived from § 347 of the 1996
DOT Act, Pub. L. No. 104-50, § 347, 109 Stat. 436, 460 (1995),
and it now provides in relevant part that,
[i]n consultation with the employees of the Administration
and such non-governmental experts in personnel
management systems as he may employ, and
notwithstanding the provisions of title 5 and other Federal
personnel laws, the Administrator [of the FAA] shall
develop and implement, not later than January 1, 1996, a
personnel management system for the Administration that
addresses the unique demands on the agency’s workforce.
Such a new system shall, at a minimum, provide for greater
6
flexibility in the hiring, training, compensation, and
location of personnel.
49 U.S.C. § 40122(g)(1).
On March 28, 1996, the FAA issued its new Personnel
Management System. The new system extended Chapter 71
protections to FAA employees:
The FAA, all FAA employees, and all labor organizations
representing FAA employees shall have the same rights,
and be subject to the same responsibilities and limitations,
as are available to all Federal agencies, employees, and
labor organizations under 5 U.S.C. Chapter 71.
FAA Personnel Management System (Mar. 28, 1996) at 35,
reprinted in Joint Appendix (“J.A.”) 84. The FAA explained
that, while Congress did not require that the new system
conform to Chapter 71, “[t]he FAA has elected to continue the
rights and benefits of union representation to our employees.”
Id. at ii, reprinted in J.A. 44. It is undisputed that the current
version of the FAA Personnel Management System contains this
same provision extending Chapter 71 protections to FAA
employees.
On March 29, 1996, Congress amended § 347 to codify the
agency’s choice to extend Chapter 71 protections to FAA
employees. H.R.J. Res. 170, Pub. L. No. 104-122, 110 Stat. 876
(1996) (codified as amended at 49 U.S.C. § 40122(g) (2000)).
Section 347 now provides: “The provisions of title 5 shall not
apply to the [FAA’s] new personnel management system . . .
with the exception of . . . chapter 71, relating to labor-
management relations.” 49 U.S.C. § 40122(g)(2)(C). The
parties agree that none of these acts altered the Panel’s
jurisdiction to address collective bargaining impasses between
the FAA and the Unions.
7
According to the FAA, “business as usual” changed when
Congress enacted 49 U.S.C. § 106(l) in October 1996. The FAA
argues that, “[u]nder 49 U.S.C. § 106(l), the FAA has the power
to fix compensation for officers and employees, but its power to
bargain over compensation and benefits is strictly limited.” Br.
for FAA as Amicus Curiae at 2. Section 106(l) states in
relevant part:
Except as provided in subsections (a) and (g) of section
40122, the Administrator is authorized, in the performance
of the functions of the Administrator, to appoint, transfer,
and fix the compensation of such officers and employees,
including attorneys, as may be necessary to carry out the
functions of the Administrator and the Administration. In
fixing compensation and benefits of officers and
employees, the Administrator shall not engage in any type
of bargaining, except to the extent provided for in section
40122(a), nor shall the Administrator be bound by any
requirement to establish such compensation or benefits at
particular levels.
49 U.S.C. § 106(l)(1). This provision was added as § 225 of the
Air Traffic Management System Performance Improvement Act
of 1996 (“1996 FAA Act”), enacted as Title II of the Federal
Aviation Reauthorization Act of 1996, Pub. L. No. 104-264, tit.
II, 110 Stat. 3213, 3232. The provision originally referred in its
text to the uncodified version of § 40122(g), but was put in its
current form in the Wendell H. Ford Aviation Investment and
Reform Act for the 21st Century, Pub. L. No. 106-181, § 307(a),
(c), 114 Stat. 61, 124-26 (2000).
The FAA points out that § 106(l)’s “invocation of section
40122(a) of title 49 incorporates a special process involving
consultation, negotiation, mediation, and notification. If the
parties cannot agree on compensation and benefits after
consulting and negotiating, the Federal Mediation and
Conciliation Service is brought in to help [the parties] reach an
8
agreement. Then, if the parties still cannot agree, the FAA is
authorized to implement its proposed changes if it follows a
procedure of notifying Congress and waiting a period of 60
days.” Br. for FAA as Amicus Curiae at 3.
The parties disagree over the import of 49 U.S.C. § 106(l).
The FAA argues that § 106(l) divests the FSIP of jurisdiction
over bargaining impasses between the FAA and union
bargaining agents with respect to “compensation and benefits.”
In other words, the agency claims that it is only required to
bargain “to the extent provided for in section 40122(a).” And
under § 40122(a)(2), the FAA cannot be required to use the
services of the FSIP. The Unions disagree, pointing out that the
first line of § 106(l) says “[e]xcept as provided in subsection[ ]
. . . (g) of section 40122,” and that § 40122(g) in turn expressly
incorporates Chapter 71 bargaining rights. Neither the Panel nor
the Authority has taken a position on the matter.
C. The 2003 Bargaining Impasses and the FSIP
NATCA represents around 16,000 employees of the FAA.
After a lengthy period of negotiating with the FAA on behalf of
11 bargaining units, involving approximately 1800 union
members, the parties reached a bargaining impasse. When their
attempt to reach resolution with the assistance of the Federal
Mediation and Conciliation Service failed, NATCA filed a
formal Request for Assistance from the Impasses Panel on July
8, 2003. During the same month, PASS filed a series of formal
Requests for Assistance from the Panel when its efforts to
negotiate with the FAA on behalf of four bargaining units,
representing approximately 4000 FAA employees, had similarly
stalled.
On September 22, 2003, the FAA responded by filing an
objection to the FSIP’s jurisdiction. Based on its interpretation
of the provisions of the 1996 FAA Act, the FAA argued that the
Unions’ Requests for Assistance should be denied, because
9
Congress had decreed that disputes between the FAA and its
unions concerning changes to the Personnel Management
System should be directed, first, to the Federal Mediation and
Conciliation Service, and then, if agreement cannot be reached,
to Congress. The FSIP had no role to play, according to the
FAA. In this case, the Federal Mediation and Conciliation
Service procedure had been exhausted, so the proper remedy,
the FAA argued, was for the FAA to make the required
submission to Congress.
The Unions replied in turn that the FAA’s construction of
the 1996 FAA Act was wrong. The crux of the Unions’
argument before the Panel was that 49 U.S.C. § 40122(a)
governs procedures for negotiating changes to the Personnel
Management System and that subsection (a) has no application
in the context of recurring collective bargaining between the
FAA and its unionized employees. And, further, according to
the Unions, 49 U.S.C. § 40122(g) expressly confirms that
Chapter 71, which governs labor-management relations, applies
to collective bargaining disputes between the FAA and unions
representing agency employees.
On January 9, 2004, the Panel issued its decisions. In each
case, the Panel explained that “[a]fter due consideration of the
request for assistance . . . the Panel in accordance with its
regulations, 5 C.F.R. § 2471.6(a)(1), declines to assert
jurisdiction because it is unclear whether the Panel has the
authority to resolve the parties’ impasse.” Department of
Transportation, Federal Aviation Administration, Washington,
DC and NATCA, AFL-CIO, Case No. 03 FSIP 144 at 1 (Jan. 9,
2004), reprinted in J.A. 25 (“NATCA Decision”); Department of
Transportation, Federal Aviation Administration, Washington,
DC and PASS, AFL-CIO, Case Nos. 03 FSIP 149, 150, 151, and
157 at 1 (Jan. 9, 2004), reprinted in J.A. 29 (“PASS Decision”).
The Panel found that the FAA “ha[d] raised arguable questions
concerning whether the Panel has the authority to resolve
10
collective bargaining disputes over the compensation and
benefits of FAA’s bargaining-unit employees.” NATCA
Decision at 3, reprinted in J.A. 27; PASS Decision at 4,
reprinted in J.A. 32. The Panel thus concluded that the various
“statutory provisions subject to conflicting interpretations[ ]
must be addressed in an appropriate forum before the Panel
commits its resources to assist the parties in resolving the merits
of their impasse.” NATCA Decision at 4, reprinted in J.A. 28
(emphasis added); accord PASS Decision at 4, reprinted in J.A.
32. The Panel assured the parties that its determination would
not prejudice any party’s right to file another request for
assistance should an appropriate forum determine that the FSIP
indeed continues to have jurisdiction over collective bargaining
disputes between the FAA and the Unions over compensation
and benefits. Id. The FSIP’s Letter to PASS added that its
determination was neither an explicit nor implicit endorsement
of the FAA’s statutory interpretation. See PASS Decision at 4
n.4, reprinted in J.A. 32 n.4.
On January 30, 2004, the Unions filed suit against the FSIP
and the Authority in the District Court. The Unions sought a
declaration that the Panel’s decisions violated its mandatory
statutory duties under 5 U.S.C. § 7119 and thereby deprived
NATCA, PASS, and the affected FAA employees of their
statutory rights. See Nat’l Air Traffic Controllers Ass’n v. Fed.
Serv. Impasses Panel, CA No. 04-138, 2005 WL 418016, at *2
(D.D.C. Feb. 22, 2005). The Unions also sought an order
directing the Panel to provide assistance in resolving the
Unions’ impasses with the FAA. Apparently, that same day, in
accordance with the procedures set forth in 49 U.S.C. §
40122(a)(2), the FAA submitted to Congress its final bargaining
proposals for the 11 NATCA-represented units, together with a
statement that it intended to impose the agency’s proposed
changes sixty days following the transmittal.
11
On February 22, 2005, the District Court granted summary
judgment to the FSIP and the FLRA, holding that it lacked
jurisdiction under Leedom to entertain the Unions’ complaints.
The Unions filed a timely notice of appeal on March 9, 2005.
On June 10, 2005, the FAA notified NATCA that it intended to
implement the terms and conditions of employment that the
agency had submitted to Congress. Subsequent developments
indicate that the dispute between NATCA and the FAA is now
moot. The parties agree, however, that the dispute between
PASS and the FAA is not moot, because bargaining between
PASS and the FAA remains at an impasse, just where it was in
2003.
II. ANALYSIS
An order of the FSIP is not reviewable “except in
extraordinary circumstances,” because “Congress precluded
direct judicial review of Panel orders.” Brewer, 735 F.2d at
1498. The Unions argue that this case presents an
“extraordinary circumstance,” because the FSIP had a
mandatory statutory duty under 5 U.S.C. § 7119(c)(5) to assist
the Unions and the FAA in resolving their collective bargaining
impasses. The Unions also contend that there is nothing in the
1996 FAA Act or in the FAA Personnel Management System
that divests the Panel of this mandatory statutory duty, so the
Panel’s refusal to address the parties’ bargaining impasses was
a flagrant abdication of its statutory duty. Thus, according to the
Unions, the District Court plainly erred in declining to exercise
jurisdiction under Leedom. Appellees respond that Leedom
jurisdiction is not available in the instant case, because the
Panel’s determination not to assert jurisdiction was not a
violation of a clear and mandatory statutory provision, and
because the Unions can seek redress from the FLRA for any
alleged wrongdoing in this case.
Ultimately, this case turns on the scope of Leedom
jurisdiction. In Leedom, the relevant statute provided that the
12
National Labor Relations Board (“Board”) “shall not . . . decide
that any unit is appropriate for [collective bargaining] purposes
if such unit includes both professional employees and employees
who are not professional employees unless a majority of such
professional employees vote for inclusion in such unit.” 358
U.S. at 185 (internal quotation marks omitted). The statute was,
thus, “clear and mandatory” with respect to the Board’s
obligations. Id. at 188. The Board nonetheless refused to allow
professional employees to vote before certifying a bargaining
unit that combined professional and nonprofessional employees.
It was therefore clear that the Board had “attempted [to] exercise
. . . power that had been specifically withheld.” Id. at 189.
Under these circumstances, the Court held that the federal
district court had jurisdiction to set aside the certification, even
though Board certification orders are interlocutory and,
therefore, normally not subject to judicial review. See id. at 187,
191. The Court explained that it could not “lightly infer that
Congress does not intend judicial protection of rights it confers
against agency action taken in excess of delegated powers.” Id.
at 190.
This so-called Leedom jurisdiction can apply in cases
involving either negative or positive statutory commands. Ry.
Labor Executives’ Ass’n v. Nat’l Mediation Bd., 29 F.3d 655,
661-62 (D.C. Cir.) (en banc), amended by 38 F.3d 1224 (D.C.
Cir. 1994). However, “[t]he invocation of Leedom jurisdiction,
we have emphasized, is extraordinary.” Ass’n of Civilian
Technicians v. FLRA, 283 F.3d 339, 344 (D.C. Cir. 2002)
(internal citation and quotation marks omitted). This point
cannot be overstated, because, as the parties in this case
recognize, Leedom jurisdiction is extremely narrow in scope.
The Court in Leedom held that the district court had
jurisdiction because the Board’s order was “in excess of its
delegated powers and contrary to a specific prohibition in the
[National Labor Relations] Act,” which “[was] clear and
13
mandatory,” 358 U.S. at 188, and the “‘absence of jurisdiction
of the federal courts’ would [have] mean[t] ‘a sacrifice or
obliteration of a right which Congress’ ha[d] given,” id. at 190.
And “‘[c]entral’ to the decision in Leedom, the Court has since
explained, was the understanding that barring district court
review would have ‘wholly deprive[d] the union of a meaningful
and adequate means of vindicating its statutory rights,”’ because
the union’s members had ‘“no other means, within their
control”’ of obtaining judicial review.” Sturm, Ruger & Co. v.
Chao, 300 F.3d 867, 874 (D.C. Cir. 2002) (citing MCorp, 502
U.S. at 43) (second alteration in original). Thus, in order to
justify the exercise of Leedom jurisdiction, a plaintiff must
show, first, that the agency has acted “in excess of its delegated
powers and contrary to a specific prohibition” which “is clear
and mandatory,” Leedom, 358 U.S. at 188, and, second, that
barring review by the district court “would wholly deprive [the
party] of a meaningful and adequate means of vindicating its
statutory rights,” MCorp, 502 U.S. at 43. The Unions have not
satisfied these requirements in this case.
A. The Statutory Duty Is Not “Clear and Mandatory” in this
Case
In arguing that the FSIP had a mandatory duty to assert
jurisdiction over the parties’ bargaining impasses, the Unions
claim that the Panel’s statutory impasse-resolution role is
mandatory: Congress has expressly declared that the Impasses
Panel “shall promptly investigate any impasse presented to it[,]
. . . shall consider the impasse and shall either – (i) recommend
to the parties procedures for the resolution of the impasse; or (ii)
assist the parties in resolving the impasse.” 5 U.S.C.
§ 7119(c)(5)(A). Therefore, according to the Unions, the FSIP
could not decline jurisdiction on the grounds that it was
“unclear” as to whether the Panel had authority to assist in the
resolution of the parties’ impasses.
14
The FSIP responds that its refusal to assist the parties in this
case did not violate 5 U.S.C. § 7119(c)(5)(A), because both the
statute and common sense dictate that, before exercising any
purported authority, the Panel should assure itself that a
collective bargaining dispute is within its jurisdiction. Indeed,
the Panel notes that its regulations clearly permit the FSIP to
“[d]ecline to assert jurisdiction in the event that it finds that no
impasse exists or that there is other good cause for not asserting
jurisdiction.” 5 C.F.R. § 2471.6(a)(1). The Panel also claims
that, consistent with longstanding practice, the FSIP often
declines to assist in the resolution of parties’ bargaining
impasses when the Panel’s jurisdiction is uncertain.
As noted above, the FAA has taken the position, both before
the FSIP and in this court, that 49 U.S.C. §§ 106(l) and 40122(a)
divest the Panel of jurisdiction over collective bargaining
disputes between the FAA and its unionized employees over
compensation and benefits. And the Unions, as noted above,
have consistently maintained that the FAA’s position is plainly
wrong, because nothing in the 1996 FAA Act abrogates Chapter
71’s applicability to collective bargaining between the FAA and
the Unions, and thus nothing in that Act changes the Impasses
Panel’s mandatory jurisdiction over collective bargaining
impasses between the FAA and the Unions. Rather, according
to the Unions, § 40122(a) only governs the process of
“developing and making changes to the personnel management
system,” 49 U.S.C. § 40122(a)(1), not changes to collective
bargaining agreements. And § 40122(g) and the FAA’s
Personnel Management System expressly provide that the
process of collective bargaining between the FAA and the
exclusive bargaining representatives of its employees is to be
governed by Chapter 71 on the same terms as that statute
governs the process of collective bargaining between all other
federal agencies and the representatives of their employees. In
other words, the Unions contend that § 40122(a) does not
15
purport to override § 40122(g), and that §106(l) is not to the
contrary when read as a whole.
Both the FAA and the Unions have raised compelling
arguments regarding the proper interpretation of the disputed
statutory provisions. It is precisely because of this that we
cannot conclude that the Panel’s decisions in this case
contravened a clear and specific statutory mandate, as required
by Leedom. See 358 U.S. at 188. On the record before us, it
appears that the Panel reasonably questioned whether it had
jurisdiction to act. Therefore, it cannot be said that the FSIP
violated “a specific and unambiguous statutory directive.”
United Food & Commercial Workers, Local 400 v. NLRB, 694
F.2d 276, 278 (D.C. Cir. 1982) (per curiam).
B. The Unions Have a Meaningful and Adequate Means of
Vindicating Their Alleged Statutory Rights
Even if the Unions’ view of the Panel’s jurisdiction is
correct, they still could not assert jurisdiction under Leedom,
because they have not been “wholly deprive[d] . . . of a
meaningful and adequate means of vindicating [their alleged]
statutory rights.” MCorp, 502 U.S. at 43. The brief to this court
submitted on behalf of the FSIP and the FLRA strenuously
contends that the Unions’ grievances in this case should be
presented to and addressed by the FLRA. We agree. If their
claims have merit, the Unions can vindicate their statutory rights
and gain appropriate redress before the FLRA.
In all of its arguments – to the FSIP and to this court – the
FAA has made it clear that, in its view, it has no duty to
participate in proceedings before the Panel to resolve collective
bargaining impasses between the agency and the Unions. In
other words, the FAA has refused to bargain under the auspices
of the Panel, because it believes that the agency has no legal
obligation to submit to the FSIP’s jurisdiction in matters
involving compensation and benefits of FAA employees. If the
16
FAA’s proffered interpretation of the relevant statutes is wrong,
then the agency’s declaration that it will not appear before the
FSIP is undoubtedly an unfair labor practice.
An agency engages in an unfair labor practice when it
“refuse[s] to consult or negotiate in good faith with a labor
organization as required by [Chapter 71].” 5 U.S.C.
§ 7116(a)(5). Because “it ‘is well established that the
procedures of the Panel are part of the collective bargaining
process,’” Am. Fed’n of Gov’t Employees v. FLRA, 778 F.2d
850, 855 (D.C. Cir. 1985) (“AFGE”) (internal citation omitted),
the obligation to bargain under the statute obviously includes
participation in proceedings before the FSIP.
Furthermore, the FLRA has held that, where an agency has
a duty to negotiate, a unilateral change in conditions of
employment is a refusal to consult or negotiate in good faith and
thus an unfair labor practice. See, e.g., Fed. Bureau of Prisons,
Fed. Corr. Inst. Bastrop, Tex., 55 F.L.R.A. 848, 852 (1999).
Therefore, if the FAA refuses to participate in proceedings
before the Panel to resolve collective bargaining impasses
between the agency and the Unions and then unilaterally
implements its proposals, the Unions will have an additional
basis for asserting unfair labor practice charges before the
FLRA.
In short, if the Unions’ interpretation of the disputed
statutory provisions is correct, then it is clear that they have
viable unfair labor practice charges that can be raised with and
addressed by the FLRA. Thus, the Unions are not without
possible redress for the alleged violations of their statutory
rights.
It is also clear that any alleged unfair labor practices must
be addressed in the first instance by the FLRA – not by the
FSIP, the District Court, or this court. See AFGE, 778 F.2d at
854 (explaining that “[t]he Authority has held that” Chapter 71’s
17
grant of jurisdiction to the FLRA to resolve issues regarding a
party’s duty to bargain in good faith “preclude[s] the Impasses
Panel from considering negotiability issues”); Steadman v.
Governor, U.S. Soldiers’ & Airmen’s Home, 918 F.2d 963, 966
(D.C. Cir. 1990) (finding that the “district judge improperly
interjected the federal judiciary, at a premature stage into
[Chapter 71’s] carefully developed system of administrative
review,” by adjudicating the parties’ dispute before an unfair
labor practice charge had been filed with the Authority); EEOC
v. FLRA, 476 U.S. 19, 23 (1986) (per curiam) (agreeing that
except in extraordinary circumstances the Courts of Appeals are
without jurisdiction to consider an issue not raised before the
FLRA). Matters such as statutory unfair labor practice charges,
which are properly within the jurisdiction of the FLRA, should
be addressed by the Authority in the first instance to allow it to
“bring[ ] its expertise to bear on the resolution of those issues.”
EEOC v. FLRA, 476 U.S. at 23.
III. CONCLUSION
For the reasons stated in this opinion, the judgment of the
District Court is hereby affirmed.
So ordered.