United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 22, 2021 Decided July 2, 2021
No. 20-1183
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES LOCAL
3690,
PETITIONER
v.
FEDERAL LABOR RELATIONS AUTHORITY,
RESPONDENT
On Petition for Review of an Order
of the Federal Labor Relations Authority
Joshua Lee Davis argued the cause for petitioner. On the
briefs was Jack K. Whitehead, Jr.
Sarah C. Blackadar, Attorney, Federal Labor Relations
Authority, argued the cause for respondent. With her on the
brief were Noah B. Peters, Solicitor, and Rebecca J. Osborne,
Deputy Solicitor.
Before: HENDERSON, WILKINS and WALKER, Circuit
Judges.
Opinion for the Court filed by Circuit Judge HENDERSON.
2
KAREN LECRAFT HENDERSON, Circuit Judge: The United
States Department of Justice Federal Bureau of Prisons Federal
Correctional Institution Miami, Florida (FCI Miami)
implemented a staffing practice without negotiating with the
union representing the FCI Miami employees—the American
Federation of Government Employees, Local 3690, AFL-CIO
(AFGE). AFGE filed a grievance and subsequently invoked
arbitration; the arbitrator ruled in favor of AFGE. FCI Miami
excepted to the arbitrator award with the Federal Labor
Relations Authority (FLRA or Authority) and the Authority set
aside the award in its entirety for failing to draw its essence
from the collective bargaining agreement (Master Agreement)
between the Federal Bureau of Prisons—including FCI
Miami—and AFGE. AFGE petitions for review of the
Authority decision. However, § 7123(a)(1) of the Federal
Service Labor-Management Relations Statute (FSLMRS)
allows for judicial review of an Authority decision arising from
review of arbitral awards only if “the order involves an unfair
labor practice.” 5 U.S.C. § 7123(a)(1). Because the Authority
decision does not “involve” an unfair labor practice, we lack
jurisdiction to review the decision and accordingly dismiss
AFGE’s petition.
I. BACKGROUND
FCI Miami employees work in several roles and
departments, with the largest department being the Custody
Department—staffed by “Custody” employees. Other
departments are “Non-Custody” departments and are staffed by
“Non-Custody” employees. Before 2016, when the Custody
Department was short-staffed, FCI Miami either left positions
in the Custody Department vacant or paid a Custody employee
overtime. In early January 2016, FCI Miami notified AFGE
that it planned to start using Non-Custody employees to fill
vacant Custody Department positions; it called the process
3
“augmentation.” AFGE shortly thereafter sought to negotiate
the matter but FCI Miami denied the request, telling AFGE that
it had implemented augmentation in accord with Article 18 of
the Master Agreement, which permits FCI Miami to change the
shift or assignment of Custody and Non-Custody employees:
in short, FCI Miami viewed augmentation as “reassignment.”
After FCI Miami failed to negotiate regarding augmentation,
AFGE filed a formal grievance, alleging that FCI Miami had
violated both the Master Agreement and its past practices by
implementing augmentation. FCI Miami responded that it had
authority to institute augmentation under the Master
Agreement and denied AFGE’s grievance. AFGE then
invoked arbitration.
The arbitrator concluded, in relevant part, that FCI Miami
had breached a binding past practice of non-augmentation and
violated several provisions of the Master Agreement—as well
as a separate Memorandum of Understanding (MOU) between
FCI Miami and AFGE—by implementing and failing to
bargain over augmentation. Shortly thereafter, FCI Miami
filed exceptions to the arbitrator award with the Authority and
AFGE filed an opposition to FCI Miami’s exceptions. The
Authority—over a dissent—concluded that the arbitrator
award failed to draw its essence from the parties’ agreement
because Article 18 of the Master Agreement unambiguously
“gives [FCI Miami] broad discretion to assign and reassign
employees”—encompassing the practice of augmentation—
and set aside the award in its entirety. U.S. & Am. Fed’n of
Gov’t Emps., 71 F.L.R.A. 660, 661–62 (2020). 1 The Authority
1
Although FCI Miami filed several exceptions to the arbitrator
award, the Authority reached only the first exception because it
concluded the award failed to draw its essence from the Master
Agreement. Id. at 662 n.26.
4
majority also explained that the Steelworkers trilogy 2 of
Supreme Court cases did not require it “to ignore erroneous
arbitral awards that run counter to the plain language, or
judicial interpretations, of contractual provisions,” noting that
the FSLMRS provision providing for the Authority’s review of
arbitral awards allows the Authority to find such “awards
deficient ‘on other grounds similar to [not the same as] those
applied by Federal courts in private sector [arbitrations].’” U.S.
& Am. Fed’n of Gov’t Emps., 71 F.L.R.A. at 664 (alterations
and emphasis in original) (quoting 5 U.S.C. § 7122(a)(2)). 3
AFGE timely petitioned for review of the Authority decision.
II. DISCUSSION
We lack jurisdiction to review the Authority decision
because it does not “involve[] an unfair labor practice.” 5
U.S.C. § 7123(a)(1). The Congress provided “a two-track
system” in the FSLMRS “for resolving labor disputes.”
Overseas Educ. Ass’n v. FLRA (Overseas), 824 F.2d 61, 62
2
United Steelworkers of Am. v. Enter. Wheel & Car Corp., 363
U.S. 593 (1960); United Steelworkers of Am. v. Warrior & Gulf
Navigation Co., 363 U.S. 574 (1960); United Steelworkers of Am. v.
Am. Mfg. Co., 363 U.S. 564 (1960).
3
Then-FLRA Member DuBester—now Chairman—dissented,
arguing the majority improperly discounted the arbitrator’s finding
of a past practice, incorrectly relied on Federal Bureau of Prisons v.
FLRA (BOP I), 654 F.3d 91 (D.C. Cir. 2011), and United States
Department of Justice v. FLRA (BOP II), 875 F.3d 667 (D.C. Cir.
2017), and erroneously distinguished and rejected the application of
the Steelworkers trilogy to review of arbitral awards in the federal
public sector. U.S. & Am. Fed’n of Gov’t Emps., 71 F.L.R.A. at 669–
76 (DuBester, dissenting). FLRA Member Abbott concurred, noting
he would have more definitively held that any earlier Authority
decisions, to the extent they “requir[ed] blind deference to erroneous
arbitral determinations,” should not be followed. Id. at 667–68
(Abbott, concurring).
5
(D.C. Cir. 1987). One track permits a party subjected to an
unfair labor practice to file a charge with the Authority’s
General Counsel, who investigates and determines whether to
issue a complaint. Id. at 63 (citing 5 U.S.C. § 7118(a)). If a
complaint issues, the Authority adjudicates the matter and its
decision is subject to judicial review. Id. (citing 5 U.S.C.
§ 7123). The other track allows the parties to a collective
bargaining agreement to invoke binding arbitration if the
collective bargaining agreement’s grievance procedures do not
resolve a dispute. Id.; see also 5 U.S.C. § 7121(b)(1)(C)(iii).
The arbitrator award is reviewable by the Authority. 5 U.S.C.
§ 7122. But our review of the Authority decision is prohibited
by § 7123 unless the decision “involves an unfair labor
practice under section 711[6]” of the FSLMRS. Overseas, 824
F.2d at 63 (alteration and emphasis in original) (quoting 5
U.S.C. § 7123(a)). 4 In Overseas, we recognized that, although
“some labor disputes are capable of following either track,” id.
at 63, “[t]he fact that the underlying conduct could be
characterized as a statutory unfair labor practice” is not enough,
id. at 67 (emphasis in original). Under § 7123(a), “a statutory
unfair labor practice must be either an explicit ground for, or
be necessarily implicated by, the Authority’s decision” to
subject it to judicial review. Overseas, 824 F.2d at 67–68. Put
another way, the Authority decision “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”: “mere passing reference to
an unfair labor practice will not suffice.” Ass’n of Civilian
Technicians, N.Y. State Council v. FLRA (ACT), 507 F.3d 697,
4
The FSLMRS refers to § 7118 but we have recognized that this is
an error and that “the correct reference” is to § 7116 of the FSLMRS.
Id. at 63 n.2.
6
699 (D.C. Cir. 2007) (citations and internal quotation marks
omitted).
AFGE asserts that the Authority decision involved an
unfair labor practice because it “necessarily implies” an unfair
labor practice. Pet’r’s Br. 11 (emphasis omitted). We disagree.
There is no discussion, mention or implication of an unfair
labor practice in the Authority decision. Further, the arbitrator
award does not once mention an unfair labor practice and none
of the listed issues in the award, set forth with AFGE’s
agreement, mentions or pertains to a statutory unfair labor
practice. Pet’r’s App. (P.A.) 1. 5 Even if AFGE could have
characterized the underlying conduct as a statutory unfair labor
practice, it did not do so. In fact, this seems to be a
quintessential example of exactly the scenario we discussed in
Overseas: AFGE “affirmatively chose to invoke the agreement,
not the statute. It must now live with the consequences that
flow from invocation of this theory. [It] cannot be permitted at
this late stage to transform its grievance claim into a statutory
claim.” Overseas, 824 F.2d at 69. AFGE chose the
arbitration-grievance process, framing the issues as contractual
until it received an unfavorable ruling from the Authority. At
that point, AFGE petitioned our court for review and asserted
that its claim was an unfair labor practice all along, even though
its earlier arguments, the arbitrator award and the Authority
5
FCI Miami’s exceptions reference an unfair labor practice in
a single footnote, asserting that “[t]he current case is clearly a[n
unfair labor practice] brought through arbitration,” P.A. at 50 n.3;
AFGE’s opposition only references FCI Miami’s footnote, id. at 155.
Assuming arguendo that a party’s statement to the Authority can
establish that an Authority decision involves an unfair labor practice,
these de minimis references in the parties’ filings do not: they do not
demonstrate that the Authority decision “necessarily implicated,”
Overseas, 824 F.2d at 68, or “substantive[ly] evaluate[d],” ACT, 507
F.3d at 699 (citation omitted), an unfair labor practice.
7
decision all focused on the Master Agreement—and, to a lesser
extent, the MOU—without mention of statutory unfair labor
practices. 6 The consequence of AFGE’s choice is that we do
not have jurisdiction.
Review of our precedent bolsters our conclusion: the
instant case is well-within the scope of several previous
decisions in which we concluded we did not have jurisdiction.
In United States Department of the Interior v. FLRA (Interior),
we held that an Authority decision 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[,] . . . analyze[d] the case as an alleged
breach of contract and f[ound] for the unions on that basis” and
the Authority “decision repeat[ed] the arbitrator’s statement of
the issue as one sounding in contract and conclude[d] that the
arbitrator’s decision was sound.” 26 F.3d 179, 184 (D.C. Cir.
1994). The underlying decisions in Interior also suggested that
“an argument could be made in an appropriate forum” that the
actions in that case “constituted an unfair labor practice” but
we nonetheless found the “passing reference” was not enough
to provide us with jurisdiction. Id. (emphasis in original).
Here, analysis is even more straightforward. The arbitrator
award listed multiple merits issues—with the parties’
6
AFGE raises the MOU as a separate basis for concluding the
Authority decision involved an unfair labor practice. Pet’r’s Br. 19–
24. Assuming the repudiation of the MOU was properly raised
before the Authority and can be raised on appeal, AFGE raised the
MOU before the Authority in the context of its contract-based
arguments. See P.A. 150 (arguing FCI Miami’s “failure to follow
the local MOU and negotiate before implementation of the
augmentation was a breach of contract” and that breach constituted
the underlying MOU issue). That AFGE potentially could have
raised the alleged violation of the MOU as a separate, statutory unfair
labor practice is of no moment.
8
agreement—and all were based in contract. The Authority
decision focused entirely on contractual claims, despite
disagreeing with the arbitrator award. There is also no
Authority statement substantively discussing or implicating
unfair labor practices.
ACT is especially instructive. There, we concluded the
Authority decision did not “involve” an unfair labor practice
where:
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
[Interior], the “arbitrator’s decision clearly
frame[d] the issue as one arising solely under
the parties’ collective bargaining agreements,”
the “arbitrator analyze[d] the case as an alleged
breach of contract,” and the Authority’s order
“repeat[ed] the arbitrator’s statement of the
issue as one sounding in contract.”
ACT, 507 F.3d at 700 (quoting Interior, 26 F.3d at 184). Here,
the Authority decision did not discuss an unfair labor practice
at all and the issues were plainly framed and discussed as
sounding in contract. As in Interior and ACT, the Authority
decision does not “involve” an unfair labor practice.
This case is also distinguishable from cases in which we
concluded an Authority decision did involve an unfair labor
practice. In National Weather Service Employees
Organization v. FLRA, the Authority “addressed whether the
Employer had committed an unfair labor practice and ruled that
it had not” and the parties stipulated before the arbitrator that
9
one of the issues to be decided was whether the employer
committed an unfair labor practice. 966 F.3d 875, 880 (D.C.
Cir. 2020). Here, none of the issues the parties consented to
before the arbitrator included any analysis of an unfair labor
practice and the Authority did not address unfair labor practices
in its decision, let alone devote a section to discussing whether
one was committed. In United States Department of the Navy,
Naval Undersea Warfare Center Division Newport v. FLRA
(Undersea), the Authority decision necessarily implicated a
statutory unfair labor practice because the contract provided no
ground for the decision. 665 F.3d 1339, 1345 (D.C. Cir. 2012).
Here the Master Agreement’s Article 18 provided the main
basis for the Authority decision.
AFGE makes several additional arguments to the contrary
but we are unpersuaded. Citing our decision in Undersea,
AFGE asserts that the Authority’s citation to BOP I and BOP II
means this case necessarily involves an unfair labor practice
because BOP I and BOP II addressed unfair labor practices.
However, the Authority cited BOP I and BOP II for their
interpretation of the contractual provision at the center of the
merits dispute here—Article 18 of the Master Agreement—and
to provide background for the long saga regarding this
particular provision of the Master Agreement. See U.S. & Am.
Fed’n of Gov’t Emps., 71 F.L.R.A. at 663. The Authority order
did not “derive[]” the meaning of Article 18 from the
FSLMRS. Undersea, 665 F.3d at 1345–46. Next, AFGE
argues that the Authority’s discussion of the Steelworkers
trilogy allows us to exercise jurisdiction. But that argument
stretches the Authority’s discussion of the Steelworkers trilogy
too far and cannot be squared with our approach in Overseas.
See Overseas, 824 F.2d at 66. Citation to and discussion of the
Steelworkers trilogy is not surprising in Authority decisions
reviewing arbitral awards and would—like allowing a party to
convert a claim pursued as a contractual claim to a statutory
10
unfair labor practice at the petition stage to obtain review—
“drastically limit[]” the effect the Congress intended by
curtailing judicial review of claims pursued through the
arbitration path. Id. at 66.
Finally, AFGE unavailingly points to Leedom v. Kyne, 358
U.S. 184 (1958), and United States Department of the
Treasury, United States Customs Service v. FLRA (Customs
Service), 43 F.3d 682 (D.C. Cir. 1994), as alternative bases for
our jurisdiction even if this case does not involve a statutory
unfair labor practice. See Pet’r’s Br. 27–39. In 2006, we
explained that the Leedom exception “is premised on the
original federal subject matter jurisdiction of the district
courts.” Am. Fed’n of Gov’t Emps., Local 2510 v. FLRA, 453
F.3d 500, 506 (D.C. Cir. 2006) (emphasis in original) (quoting
Customs Service, 43 F.3d at 688 n.6). As we are not a district
court, Leedom cannot serve as the basis for our jurisdiction.
Customs Service also does not provide us with jurisdiction.
Unlike in Customs Service, here the Authority did not assert
jurisdiction of and interpret a statute not meant to regulate the
working conditions of employees. See 43 F.3d at 686; see also
U.S. Dep’t of Homeland Sec. v. FLRA, 784 F.3d 821, 823 (D.C.
Cir. 2015) (explaining limited exception to § 7123 created by
Customs Service). Instead, the Authority interpreted a
collective bargaining agreement—the Master Agreement—
governing the working conditions of employees as well as the
statutes and rules applicable to labor-management arbitration
and review of such arbitration in the federal public sector.
For the foregoing reasons, we lack jurisdiction to review
AFGE’s petition and dismiss the petition.
So ordered.