AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES. AFL-CIO
Bobby L. Harnage
Andrea E. Brooks
Fair Practices Departments
January 23, 2003
Ms. Carolyn Federoff
President, Council 222
PO Box 5961
Boston, MA 02 114
Pursuant to the request of HUD Council 222 this office has carefully reviewed the final Federal Labor Relations Authority decision in AFGE C-222 and HUD, 58 FLRA No. 51 (Nov. 29, 2002). The FLRA decision at issue arose from the review of an arbitration award of Roger Kaplan issued on June 24, 2002. Any appeal to the Court of Appeals must be filed before February 27, 2003.
Our review of AFGE C-222 and HUD is informed by 5 U.S.C. §7123 (a) which. mandates what FLRA decisions are allowed to be appealed into court in very limited circumstances. Final decisions of the FLRA involving arbitrator's awards are not subject to judicial review where no Unfair Labor Practice was involved. NTEU v. FLRA, 112 F.3d 402, 404 (9th Cir. 1997). A final decision of the FLRA that reviews an arbitration award "[is] absolutely immune from judicial review". U.S. Dept of Treasury, U.S. Customs Service v. FLRA, 43 F.3d 682, 686 (D.C. Cir. 1994).
The grievance before the arbitrator arose from a career ladder dispute for Community Builders (CB), a position with either a GS-13 -15 career ladder or individual positions classified as GS-13, 14, or 15 (that is the dispute). In June 2000 the Union filed a grievance challenging an alleged change from the GS-13-15 career ladder to individual positions being rated in a GS-13-15 range. On March 16, 2001 (further amended) the parties signed a settlement agreement of the June 2000 grievance providing for a review of CB promotions. This review was completed by the Agency and the Union filed the current grievance asserting that the Agency failed to provide retroactive promotions and back pay to CBs.
January 23, 2003
In this case the issue before the arbitrator, as stipulated by the parties, was as follows:
1. Did the Department properly implement the March 16, 2002 Settlement Agreement, as amended?
2. If not, what is the appropriate remedy?
In his decision the arbitrator identified the issue as follows:
This grievance involves a challenge to the propriety of the implementation of the Settlement Agreement.
Arb. Dec. pg. 9.
Neither the issue presented to the arbitrator nor the arbitrator's award mentions an Unfair Labor Practice. When a union utilizes the grievance procedure under a collective bargaining agreement, and not as an Unfair Labor Practice, the union has to accept the consequences of that position and is not be permitted to transform a grievance claim into a statutory claim. Regrettably, the courts simply have no jurisdiction over the appeal from the CB arbitration award or FLRA decision. AFGE L-916 v. FLRA 951 F.2d 276, 279 (l0th Cir. 1991). This lack of jurisdiction remains even if the violation by the Agency could have originally been raised as a ULP. U.S. Marshals Service v. FLRA, 708 F.2d 1417, 1420-21 (9th Cir. 1953).
On exceptions, the final decision of the FLRA in this case is a cursory form denial of cross exceptions to the arbitrator's award based upon the parties' failure to raise an appealable issue. Again, the FLRA makes no mention of a ULP. Therefore, pursuant to 5 U.S.C. §7123(a) there is no appeal, as a matter of law, of the final decision of the FLRA affirming the underlying arbitration award.
We have reviewed the Union's allegations that the Agency has taken contrary factual positions on this situation in different fora However, even assuming that the Agency has been inconsistent (or indeed contrary) as to the career ladder status of CBs, the Agency's inconsistency does not provide a basis for judicial review of a final FLRA decision of an arbitration award that does not involve a ULP.
I know this is an important issue for the Council and we have, looked for any possible "thread" upon which to base a non-frivolous court appeal, however, there simply is none. Thirty years of. legal precedent under the Civil Service Reform Act makes it clear that the FLRA's decision in 58 FLRA No. 51 is final and binding.
January 23, 2003
I am sorry a more favorable decision cannot be rendered but the law clearly prohibits any further appeal in this case. As an aside, I received about a dozen identical petitions from CBs urging me to appeal this decision, I will be writing them individually as to why an appeal is not legally possible.
Sincerely and fraternally,
Mark D. Roth General Counsel
cc: Council 222 Executive Board and Local Presidents c/o President Federoff