Federal Manager's Daily Report

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A federal appeals court has stressed the limits on judicial review of FLRA decisions, stressing that federal workplace labor law allows for review of disputes from the arbitration process only if they involve an unfair labor practice.

The U.S. Court of Appeals for the District of Columbia Circuit, in case No. 20-1183, said it had no jurisdiction to hear an appeal brought by the AFGE union against the Bureau of Prisons involving assigning employees from roles that do not involve custody responsibilities to those that do.

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The union filed a grievance, arguing that the agency violated both the contract and established practices without negotiating. An arbitrator agreed with the union but the FLRA later held in a 2-1 split decision that the contract gave the agency discretion to make those so-called “augmentation” assignments.

On appeal, the court noted that labor law allows two separate tracks for resolving disputes: filing an unfair labor practice complaint at the FLRA, whose general counsel then investigates and decides whether to issue a complaint for a decision; or invoking grievance procedures under the contract and then binding arbitration if those procedures do not resolve the dispute. The court said that under the law and its precedent, courts can hear appeals of FLRA decisions only if they “include some sort of substantive evaluation of a statutory unfair labor practice.” While the AFGE argued that the dispute implied such a practice, the arbitration award did not address one.

“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 . . . The consequence of AFGE’s choice is that we do not have jurisdiction,” the court held.

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