ML20055F699
| ML20055F699 | |
| Person / Time | |
|---|---|
| Issue date: | 07/12/1990 |
| From: | Cordes J NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | |
| References | |
| TASK-AII, TASK-SE SECY-90-242, NUDOCS 9007190055 | |
| Download: ML20055F699 (29) | |
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ADJ_UDICATORY ISSUE (Information) 7@ 12, 1990 sECY-90-242
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The Commissioners TROM John F. Cordes, Jr.
Solicitor
SUBJECT:
LITIGATION REPORT 1990-25 NRC v. FLRA, No. 88-1902 (D.C. Cir.,
June 15, 1990)
This case involves the question whether a union proposal on competitive areas for "RIFs" is negotiable under the Federal Labor Relations Act.
The D.C. Circuit twice reversed FLRA decisions holding the proposal non-negotiable, and remanded the case for further explanation.
After the -
second remand the FLRA reversed course and found the proposal negotiable..The FLRA borrowed from jb2u; private sector labor law -- as the two earlier D.C. Circuit opinions had suggested -- and applied the so-called " vitally affects" test, which inquires only whether bargaining unit employees are " vitally affected" by a union proposal, without regard to the effect on nonunit employees.
The NRC (along with OPM) petitioned for review in the D.C.
Circuit.
That court (Fente11e, R.
Ginsburg & Silberman, JJ) now has rejected our challenge to the FLRA decision.
The panel held that'the " law of the case" doctrine required it to adhere to its earlier suggestions that the
" vitally affects" test covered this case.
The panel also ruled that it lacked jurisdiction to considct in attack on the test because the NRC and OPM had not raised the matter before the FLRA.
Judge Silberman wrote a separate opinion questioning whether the " vitally affects" test was sensible in the public sector but concurring in the panel's result.
NOTE:
TO BE MADE PUBLICLY ADVAILABLE IN 10 WORFING DAYS FROM THE
]
DATE O." ':'UIS PAPER I
1 ##7/4 co S S g y 4
a
r-9 The Fourth Circuit had previously embraced the
" vitally affects" test it, in NRC case.
NRC v.
ILEh,.No. 88-2086 (4th C!J., Feb.
2, 1990),
reported in Litigation R: port 1990-09, SECY 045.
The Solicitor General is unlikely to take either of these cases to the Supreme Court.
The Department of Justice is willing, however, to litigate another test case in the D.C. Circuit to obtain a definitive ruling -- unburdened by " law of the case or jurisdict:.onal doctrines -- on the
" vitally affects" test.
CONTACT Dennis Dambly x21553 James Cradock x21565 Anne Rebecca Lona v. United States, No.90-403 C l
(U.S. Claims Court)
This is a recently-filed claim for relief under the Equal Pay Act brought by a female Region II employee.
She claims that males employed by-the NRC in positions similar to P-rs (reactor inspector and reactor engineec receive greater salaries to start and earlier p,romotions.
This suit is an outgrowth of a discrimination suit plaintiff filed in federal district court in Atlanta primarily under Title VII of the Civil Rights Act of 1964.
The district judge in Atlanta, who has yet to rule on the Title VII suit, threw out plaintiff's Equal Pay Act claim on the ground that it was within the claims Court's exclusive jurisdiction.
Plaintiff has now refiled that claim in the Claims Court.
We will work with the Department of Justice in defending plaintiff's latest suit.
CONTArT:
Dennis Dambly x21553 i
Unhoff v. Sacramento Municipal Utility District, Nos. 90-15902 & 90-15921 (9th Cir., June 27, 1990)
As reported in Litigation Report 1990-22, SECY-90-177, we filed a petition in the United States Court of Appeals for the Ninth Circuit asking that court to accept an interlocutory appeal under 28 U.S.C. 1292(b) from a district court decision asserting jurisdiction over a challenge to the 1
NRC's random drug testing requirements.
Our position is that such challenges lie exclusively 2
1
j e
in the courts of appsals.
The Ninth Circuit j
(Wiggins and Trott, JJ) now has accepted the i
interlocutory appeal.
It will consider our appeal' in tandem with a related case, Eiett v. Pacific 1
Gas & Electric Co., No. 90-15131 (9th Cir. ), where l
we are defending a district court judgment in our favor on the jurisdictional question.. The cases 1
will be briefed this autumn.
It is unlikely that the court of appeals in these cases will reach any questions concerning the merits of the NRC's drug testing rules.
CONTACT:
Charles Mullins X21606 4
Wf J6hn F. Cordes, Jr.
Selicitor Attachmento:
As stated DISTRIBUTION:
Commistianers OGC OIG LSS GPA REGIONAL OFFICES EDO ASLBP ASLAP SECY 9
3
f.
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Naties: '!%is opinloo is subject to formal revision before rh=h in the Federal Reporter or U.S. App.D.C. Reporta. Usere are seguented to notify the Clerk of any formal errors la order that oorveedoes may be made before the bound volumes go to press.
I Ittt!Ph M S S ottri Sf A jtittala FJR THE DISDticT OF 00LUMBIA CIRCUIT r
Argued March 5,1990 Decided June 15,1990 No. 881901 UNrry.o STADts.Omet or PERa0NNEL MANAGEMENT, PETITIONER v.
FEDERAL LAn0R RELADONs AttrHonr!Y, Rear 0NDERT r
AMEnicAN FEDEnATiON or GOVERNMErr EWruvEEs, AFL CIO, WAL 32, twrERVENOR No. 881902 UNrrED STATES NUCLEAR 'tEcutAmRY COMMISSION, PEDT.ONER v.
FnoEnAL LAa0R RELATIONS AunionrTY, aEar0NDENT NATIONAL TREAsunY EMrmvEEs UNION, DmLRVENOR '
Bills of costa must be ud within 14 days after entry of judgment. The court looks with disfavor upon motions to & bills of costs out of time.
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2 Petitions for Rev: w of Orders and Cross-Applications of the Federal Labor Relations Authority i
Mark W. Pennok, Attorney, Department of Justice, for petitioners. Stuart M. Gerson, Assistant Attorney General, Wi#iam Kanter and Victoria F. Nourse, Attorneys, Depart.
ment of Justice, were on the brief, for petitioners in No.
881901 and No. 881902.
Wi#iam R. Tobey, Attorney, for Federal Labor Rela.
tions Authority, with whom Wi#iam S. Persina, Solicitor, and Arthur A. Horowitz, Associate Solicitor, were on the brief, for respondent in both cases. Ji# A. Gri#in also entered an appearance for respondent.
i
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David F. Klein, with whom, Gregory O'Duden, was on the brief, for intervenor National Treasury Employees Union in No, 88 1902.
Phi #ip R. Kete, was on the brief for intervenor Ameri.
1 can Federation of Government Employees, Local 32, AFL-CIO, in No. 88 1901.
Before RvrH B. GrwsBuao, Sn.BERMAN, and SamMA, Circuit Judges.
Opinion for the Court 61ed by Circuit Judge Samus.
Separate concurring opinion Sled by Cimdt Juder SILBERMAN.
Stmt.u:, Circuit Judge: The Office of Personnel Man.-
agement (*OPM") and the Nuclear Regulatory Commis-sion
("NRC")
(collectively
' petitioners")
challenge decisions of the Federal Labor Relatione Authority
("FLRA" or the " Authority") declaring that proposals of the American Federation of Government Employees, local L
32 and the National Treasury Employees Union are nego-tiable. The Authority has submitted cross applications for enforcement of its orders. Petitioners assert that the Authority applied the wrong legal standard in these deci.
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l sions and that even if the Authority used the proper test that it misapplied that test. Because the FLRA applied the law of this case and reconciled its trwtment of these pro-posals with FLRA precedent and because petitioners waited until this case had been decided three times by the i
FLRA and twice by this Court and was before this Court for the third time before pressing these arguments, we deny the petitions for review and grant the cross.
applications for enforcement.
I. BACKGROUND Intervenors, the American Federation of Government Employees, Local 32 ("AFGE") and the National Tres-sury Employees Union ("NTEU"), subm!tted for collective bargaining with the petitioning agencies proposals defin-ing " competitive area." As we explained in our previous opinions in these cases, a competitive area is simply a grouping of om loyees within an agency, according to their geogra calor i
organizational location, who compete for b reten-tion when a particular position is abollah or some other adverse action constituting a RIF (reduction in force) is imposed. In such circumstances,. an employee holding the affected position may be able to prevail over less senior or less quali6ed employees I
who hold different positions but are with!n the same competitive area.
AFGE, Local 32 v. FLRA, 853 F.2d 986,.988 (D.C. Cir.
1988) (" local 32 II") (footnote omitted). The AFGE pro-posed the following definition: "The Competitive Area shall be the Washington Metropolitan Area." AFGE, Local 32, and OPM,14 FLRA 754 (1984) ("AME FLRA I"),
remanded, 774 F.2d 498 (D.C. Cir.1985) ("Iocal 32 I"), on remand, 22 FLRA 478 (1986) ("AME FLRA II"),
remar&d, Loca! 32 II, 853 F.2d 986, on remand, 33 FLRA 335 (iM8) ("AFGE.FLRA III"). The NTEU proposed that t
" commuting area" be used "as the area of competition
...." 5.'7BU and NRC, 20 FLRA 172 (1985) ("NTEU '
TLRA I"), remanded, No. 851749 (D.C. Cir. Jan. 22,1986) 5 4
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(unpublished order), on remand, 22 FLRA 707 (1986)
("NTEU FLRA 11"), remanded, Local 3211, 653 F.2d 986, on remand, 33 FLRA 400 (1988) ("NTEU FLRA Ill"). In i
both APGE FLRA I and NTEU FLRA I the FLRA bold i
that because the proposals would afeet nonbergaining 4
unit employees the petitioning agencies were not required to bargain over competitive areas.
In APGE FLRA I, the Authority considered its earlier i
declaion in Association of Civilian Technicians, Pennsylva.
nia State Council and Pennsylvania Army and Air National
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Guard,14 FLRA 38 (1984) ("AC7"). In ACTthe Authority j
had required bargaining over a competitive area proposal.
The proposal in ACT had stated that "[n}on bargaining unit technicians will not compete with bargaining unit technicians for bargaining unit positions." ACT,14 FLRA at 38. The FLRA had held the proposal in ACT negotiable, stating that a proposal directly afecting condi-tions of unit employn snt and otherwise lawful was within l
the duty to bargain notwithstanding that it would affect nonunit employees.' Id. at 39. In APGE FLRA -I the Authority distinguished ACT as involving a proposal that did not afect nonunit employees because it limited the competitive area to the bargaining unit. NTEU FLRA I L
reached the same result without discussing ACT.
The unions petitioned this Court for review of both AFGE FLRA I and NTEU FLRA L in Imal 32 1,
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reviewing AFGE FLRA 1, we found unconvincing the' l
Authority's attempt to distinguish ACT. Noting the incon-l sistency with the ACT decision, we remanded the case to '
the Authority. We directed the Authority to," provide a reasoned explanation for any failure to adhere to its own precedents," local 32 I, 774 F.2d at 502, and suggested i
that it consider the standard applied in private sector cases invohing the negotiability of proposals afecting nonbargaining unit members. Id. at' 503 04 (citing the
" vitally affects" test of Allied Chemico! & Alkali Workers of America, Local Union No. I v. Pnttsburgh Plate Glass j
l Co.,
Chemical Division,. 404 U.S.
157 (1971)). We k
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remanded NTEU FLRA I without decialon shortly there-aner.
1 On remand tn. Authority again held in both AM;E-FLRA 11 and NTEU FLRA 11 that the proposals were not negotiable. This time the FLRA a.mounced a balancing test to determine whether proposals afecting the condi-tions of employment of nonunit imploy we are negotiable.
The Authority stated that it would detede whether the nature and degree of the epact of the proposal is so intrinsically related to the working conditions of nonunit employees so as to invade the purview of other unit representatives or require the agency to act in a way that will have a sign 16 cant efect on the rights of employees not represented by
~ the union ofering the disputed proposal.
APGE FLRA II, 22 FLRA at 482. The Authority stated that in determining whether a proposal that afecta condi.
tions of employment of nonunit employees is negotiable, j
the Authority would " balance the right of the union to negotiate over the conditions of employment of bargaining unit employees and the right of the agency to set the con.
ditions of employment of nonbargaining unit employees."
Id. The Authority concluded that ACT was consistent with this balancing test because ACT"would have directly determined the competitive area only for bargaining unit positions and employees." Id. at 485. In NTEU FLRA Il the FLRA followed its AFGE FLRA 11 decision and ratio-nale.
APGE FLRA 11 and NTEU FLRA 11, and two other cases were consolidated and petitions for review were l
brought in this Court. In our second consideration we found the Authority again unsuocessful in explaining how its rulings comported with ACT. The Authority had again distinguished ACT, holding that the ACT proposal (defin-ing competitive area as the bargaining unit) had not implicated interests of nonunit employees. We found this rplanation unconvincing. The proposal in ACT surely had a significant effect on nonunit employees. The defini-i
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tion of a competitive area afecta the intereeta both of employees included within the competitive area and those excluded from it by expanding or limiting both the pool-tions for which employees may compete in a RIF and the class of persons with whom an employee will compete for job retention. The proposal may have bene 8ted the non-unit employees by insulating them from challenge by unit employees or it may have harmed them by limiting the
- t. umber of positions for which they could compete if their jobs were being eliminated but the definition would af ct e
the interesta of nonunit employees. We found that the Authority had again failed to
- articulate an intelligible rationale for determining when an impact on nonunit employees precludes mandatory bargaining over a com-petitive area proposal".and directed the Authority to con-sider the private sector's " vitally afects" standard as discussed in Pittsburgh Plate Glass Co., Chemical Division, 404 U.S. at 179, and other cases. "Under that standard, the expert adjudicator inquires only whether vital inter-eats of unit employees would be afected by a given pro-posal, and permits bargaining over such proposals without regard to the potential efect on nonunit employees."
Imol 3211, 853 F.2d at 993.
On the second romand in both cases the Authority adopted the private sector " vitally afecta" test to deter-a I
mine whether there is a duty to bargain over proposals that afect employees outside the bargaining unit. In both cases the Authority limited its examination to the inter-eats of the unit employees and concluded that the propos.
als vitally afected the interesta of unit employees and that thus the prop (sals were within the duty to bargain.
II. ANALYSIS Petitioners now chelenge the Authority's decisions.
Although parties before the Authority, petitioners did not intervene in either of the prior petitions for review of these cases. Petitioners' primary challenges to the Authority's decisions are that the Authority was in error 4
7 l
to apply the " vitally afecta" test and that if that test was appropriate the FLRA misapplied it in these cases. The history and posture of these cus demonstrate that we need not again consider the r.pplicability of the " vitally afecta" test.
A. Law of the Cane i
By holding that the proposals were within the duty to j
hargain, the FLRA has answered this Court's primary concern: that the decisions not requiring regotiation were i
inconsistent with the FLRA's decision in ACT. Holding i
that the proposals in these cases " vitally afect[ed] the working conditJons of employees in the bargaining unit,"
the Authority ordered negotiation and achieved a result i
consistent with its decision in ACT. AME FIJtA III, 33 FLRA at 338, NTEU FlJA III, 33 FLRA at 402. Conse-i quently.the concern that motivated our remands in the Srst two decisions has been fulfilled. The FLRA has natis-i l
Bed 6 instrwtjons we gave.
Petitioners' challenge is to the Authority's und of the
" vitally afecta" test. Petitioners conceds, as they must, that our prior de eisions in this case strongly counseled the J
FLRA to apply tre " vitally afecta" test. Having held that the Authority previously acted improperly by deciding i
these cases in a manner inconsistent both with its own earlier cases and with the private _ sector negotiability standard, we cannot now entertain an objection that the Authority should be reversed for following our instructions.1 l
The doctrine of the law of the ene counsels against our
' Judge Silberman, in a concurring statement, explains with vigor his reservations to the governance of this case by the
- vitally afecta" _ test. That is a substantive matter rationaDy aired. We resist, howmr, Judge Silberman's attributions of impropriety to prior panels. Those panels, we have no reason to doubt, labored conscientiously to assure that the Authority would annalatantJy hew to principled " legal theory" and avoid indulgence in *ad 1
hocery." See Paci$c Northwest Newspaper Gudd v. NLRB, 877 F.2d 998,1003 (D.C. Cir.1989).
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issuing new instructions to the FLRA at this point in the development of this controversy. *1f there is an appeal from the judgment entered after romand, the decision on the Bret appeal establishes b law of the case to be fol-lowed on the accond." 1B J.W. Moore, Moore's Federal l
Practice 10.404[1], at 119 (1988 & Supp.1989),
i This laudable and self imposed restriction is grounded upon the sound public policy that litigation must come to an end. An appellate court cannot efti-
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ciently perform its duty to provide expeditious justice to all,af a question, once considered and decided by i
t it were to be litigated anew in the name case upon any and every subsequent appeal." Not only does the doctrine promote judicial emeiency but it also dis-couraps " panel shopping" at the circuit level, for in today a climate it is most likely that a different panel' will hear subsequent appeals.
Lehrman v. Gu2/ Oil Corp., 500 F.2d 669, 662 (5th Cir.
1974), errt. denied, 420 U.S. 929 (1976). See also Ia/ fey v.
Northwest Airlines, Inc., 740 F.2d 1071,109192 (D.C. Cir.
1984).
B. Participation of Petitioners Petitioners raise their challenge to the use of the f
" vitally affecta" test for b first time in the present peti-tions. Although petitioners participated in these cases at the Authority, initially and following both romands, peti-tioners filed briefs with the Authority only in the initial negotiability decisions. Petitioners' Brief at 14 n.3. Peti-tioners did not intervene in either of the two ea&r pet!-
tions for review of these cases. More importantly, petitioners never sought leave to file additional materials or to amend their briefs before the Authority. Petitioners at no time objected to the Authority that the Authority should not apply or that it incorrectly applied the " vitally affecta" test.
This failure does not merely counsel against our recon-sidering the " vitally affects" test, as the law of the case doctrine does; it deprives us of jurisdiction. This Court's i
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jurisdiction to hear petitions for review of the FLRA is conferred by 5 U.S.C. I 7123, which states that *(n]o objection that has not been urged before the Authority or Its designee, shall be considered by the court, unless the failure or neglect to urge the objection is acused because of utraordinary circumstances." The Supreme Court has held that a court of appeals is without jurisdiction to con.
l sider an issue not raised before the Authority. EEOC u.
FLRA, 476 U.S.19, 23 (1986) (per curiam) (disminalng cert.) (citing and adopting Department of the Dessury v.
FLRA, 707 F.2d 574, 579 (D.C. Cir.1983) and FLRA v.
Social Security Administration,163 F.2d 16G,160 61 (D.C.
Cir.1985) (holding review of issues never placed before the Authority is barred)).
Petitioners defend their failure to raise before the Authority the objections they raise here as mere inability to presciently object to the rationale of the Authority's decisions before the Authority rendered those decisions.
First, it should hardly have surprised petitioners that after twice being instructed by this Court to consider the use of the " vitally affects" test the Authority would actu.
ally do so. Moreover, even if petitioners did not anticipate that the Authority would follow this Court's subtle goad.
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ing toward the " vitally affects" test, petitioners could have sought leave to suppleraent their briefs or sought recon.
sideration under the Authority's procedures. 5 C.F.R, il 2429.26 &.17 (1989). We made clear in AME, Local 2031 v. FLRA, 878 F.2d 460 (D.C. Cir.1989), that the fall.
ure of a party to raise an objection before the FLRA is fatal to its ability to argue the objection before this Court even if the party's adversary has alluded to the issue before the Authority. Id. at 466; see also ANE, Laul2782 v FLRA, 803 F.2d 737, 742 (D.C. Ci'.1986).
Ill. CoNCW81oN Petitioners have failed at the adminntrative level to object to the use of the private sector ' vitally affects" standard applied by the FLRA as suggested in our prior i
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1 Sn.aannuN, Circuit Judge, concurring: I concur in the court's judgmeat. I do not think, however, that we are actually bound by the
- law of the case" to affirm the Authority's adoption of the " vitally affects" test, still less its application of that test in these cases. In our prior opinions, we instructed the Authority to justify its failure i
to adopt the " vitally affects" test used in the private sector.
See American Federation of Government Employees, Local 32 v. FLRA, 853 F.2d 986, 992 93 (D.C. Cir.1988);
American Federation of Government Emplopes, local 32
- v. FLRA, 774 F.2d 498, 503 04 (D.C. Cir.1985). But we i
did not actually hold that it was obliged to embrace that standard. Nor do I believe that we lack
- jurisdiction" to consider petitioners' arguments on the ground that they did not intervene earlier to urge the FLRA to maintain its position in the face of this court's not so subtle prodding, Technically, petitioners.were not aggrieved until after our second remand, when the FLRA changed its position and declared negotiable the proposals of the American Federa-tion of Govi rnment Employees, Local 32 and the National Treasury Einployees Union. See 33 F.L.R.A. 336 (1988).8 But, after 1wo opinions of our court have pushed the FLRA into inactly the position it has adopted, I think it would not 0: dy be institutionally unseemly for a new panel to switch c)urse, I do not think we are free to do'so i
because we must defer under Chevron, U.S.A. Inc. v. Nat-i V
ural Resources Defense Council, Inc., 467 U.S. 837 (1984),
to the agency's reasonable interpretation of its statute, which imposes on management officials of federal agencies a duty to bargain with their employees' unions regarding a
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" conditions of employment." See 6 U.S.C. I 7103(a)(12). I write separately, nevertheless, because'I think that we l-exceeded our legitimate scope of review m those two previ-l ous panel opinions-certainly in tone. I also holieve that 2Thus, petitioners had no " objection" to urge to the FLRA until 1
then And, by that time, the Authority was well apprimod of the is e whether the ' vitally aHect4" test applied to the cases oefore it. See American Federation of Government Employees.>. FLRA, r
878 F.2d 460, 466 (D.C. Cir.1989).
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2 the substantive rule of labor law we have pressed the FLRA into accepting has dubious applicability to the fed.
eral sector.
% problem this case presents-our prior opinions to the contrary-does not really have its analog in the pri-vate sector, ht is so because the Federal Labor Rela-tions Act imposes a number of limits on negotiability of proposals that t'4al with workire conditions of employees not found under the National ;. abor Relations Act. See Fort Stewart Schools v. FLRA, 58 U.S.L.W. 4624, 4626 (U.S.
May 29, 1990)
(No.
89 65);
5 U.S.C.
4 Il 7103(a)(14)(C),7106(a) & 7117(a). One of those limita-i tions is that government agencies and unions are not free to bargain over proposals that are inconalatsnt with i
government wide regulations. Ser 5 U.S.C. I 7117(a)(1).
in other worda, theoretically at least, the Executive Branch can take virtually any proposal off the bargaining.
table by adopting a government wide regulation covering
^
the subject (which often makes government petitions for review to the courts of appeal from FLRA decisions seem rather unnecessary-unless one views the time of Article t
Ill judges as somewhat expendable). -
Here we face a government wide regulation that bears on the negotiability of the union's proposal. OPM's regu-lations dealing with the enormously sensitive subject of v
redvetions in forte (RIF) provide that employees compete
-based on factors such as tenure, grade level, and veter-ans preferences-against each other within a " competitive area." Thtt concept is definable by an agency in organiza-3 tional arid geographical terms but-and this is the nub of the proslem-the competitive area "must include all employees within the competitive area ao-defined." 5-C.F.R. I 351.402(b). Thus, althou ited discretion to pick the bureau,gh the agency has lim-major command, direc-torate, or other equivalent major subdivisions of an agency within the local " competitive area," see id.,' what.
ever definition it chooses will cover all employees within -
the area-those in different bargaining units, as well as non union employees. Because of OPM's regulation, the l
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3 agency may not agree to separate competitive areas for differer't bargaining units. And, therefore, if an agency were to agree to a union's proposal for a definition of i
" competitive area," It would perforce cover employees not represented by the union and, presumably, employees with diferent interesta.
This sort of problem simply does not arise in the pri-vate sector because no private employer has the authority to impose uniformity of any aspect of wages, hours, or working conditions among all employees, union and non-union, or amon[ diferent bargaining units. Under the National Labor kelations Act, a somewhat diffmnt issue involving an employer's obligation vel non to bargain over matters that have impact on interests outalde any employ-ment relationship has surfaced. In Allied Chemical and Alkali Workers of America v. Pittsburgh Plate Glass Co.,
404 U.S.167 (1971), the Supreme Court held that an employer did not have to bargain with its union over health benefits of retired employees (who were no longer i
employees) because the issue did not have a
- vital efect" on bargaining unit employees. It was thought speculative whether the interests of the bargaining unit's medical i
costs would be affected positively or negatively by the union's effort to extend its bargaining to retirees.
Although the opinion is unclear on this point, it seems.
that the court was also concerned over a conflict of inter-est between active and retired employees. In any event, the case gave rise to the notion that, under the National Labor Relations Act, an employer is obliged to bargain with a union representing bargaining unit employees over an issue directly affeedng non emplovees if the question-
" vitally affects" the l'argaining unit. It has never, as far as I can tell, been erplied to a situation where two groups of employees of tho same employer-bargaining unit and non. bargaining u. tit (or union and non union)-are affected by a unit,n negotiating proposal.8 l
- ln Teamsters linion v. Oliver, 858 U.S. 283 (1959) and l
Fibreboard Paper i rodue:s v. NLRB, 379 U.S. 203 (1964), referred
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l to by the Supreme Court in Pitt46urgh Piste Glass, employers were held to be required to bargain over their subcontracting out-side the bargaining unit and outside the employment relationship, l
which had a negative impact on bargaining unit employees.
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As the majority describes, we remanded this case twice because the Authority did not adequately explain what appeared to us to be its inconsistent treatment of two
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cases involving the question of the negotiability of union proposals relating to competitive areas. But we went fur-ther than simply asking for a reconciliation of the two cases; we quite clearly indicated that we disapproved of the Authority's analysis and seemingly directed the Authority-in the contert of asking for an adequate explanation-to adopt the
- vitally affects" test drawn i
from Pittsburgh Plate Glass. The Authority had instead sought to adopt a test which focused on the interests of
- ne non bargaining unit employees. A proposal-such as one that sought to de6ne the competitive area-wat non-negotiable if the nature and degree of the impact of the proposal is so intrinsically related to the working conditions of nonunit employees so as to invade the purview of other unit representatives or require the agency to act in a way that will have a signlicant effect on the rights of ennloyees not represented by the union offering the dsputed proposal.
22 F.L.R.A. 478, 482 (1986).
i We, in effect, disapproved of that standard and broadly r
suggested that the Authority adopt a test for negotiability (the " vitally affects" test) which emphasizes the interests cf bargaining unit employees and ignores the concerne of other employees who are swept up by the proposed clause.
To be cire, it can be argued that the Supreme Court in Pittsburgh Plate Glass, its only application of the
- vitally affects" test, actually did decisively weigh the interests of the affected non employees (the retired persons), and therefore the Authority could have adopted the "vitaby affects" test and still determined that the proposals were not negotiable. But the tenor of our prior opinions ier-tainly pointed the FLRA in the other direction-thet an application of that test would result in a determination that the proposals were negotiable. As should be apparent, I believe we went too far in twice remanding to the P
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Authority. Our language was, in my view, too unneutral for a remand for inadequate explanation-particularly the
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second time. That the majority treats the Authority's adoption of the " vitally affects" test-and its application to these facts-as the " law of the case" makes my point; that formulation necessarily suggests that the FLRA was I
obliged to adopt our interpretation of the FLRA'. The Authority understandably, therefore, seems-to have understood our prior opinions as more a direction than a request for explanation. I regret the need to criticise the prior panel opinions, but in a post Chevron era (requiring heightened deference to agency interpretation of impre-eine legislative language) we must take care not to cadole agencies, through remand for inadequate explanations, into adopting legislative interpretations we lack authority to require.8 See Atari Gomes Corp. v. Oman, 888 F.2d 879, 887 (D.C. Cir.1989) (Silberman, J., concurring in the judgment). And agencies should maintain the courage of their comietions-although a little hard thinking would i
help as well.
Unfortunately, in this case, we pushed the Authority into acceptance of a National Labor Relations Act.
proposition-which itself is not all that crystalline-developed to deal with quite different kinds of issues. Now that the Authority has adopted as its own interpretation i
of the FLRA the very construction ofits statute we urged upon it, we have no cholce but to defer, even if we over-t reached in our prior opinions and the FLRA's assimilation.
of our view is not all that persuasive.- Perhaps the govern-ment could have headed off this result if it had bestirred itself previously-but it is too late now. I take aclace in.
supposing that OPM can cure the problem by merely modifying its governiaent wide regulations.
The mWority *resista" my claim that the prior panels exceeded the appropriate neope of review, see Maj, Op. at n.1, but does.
i not dispute it other than to defend the panels' motive-which, of course. I do not impugn.
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IN THE UNITED STATES CLAIMS COURT l
I ANNE REBECCA LONG,
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Plaintiff,
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v.
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NO: 90-403 C
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THE UNITED STATES,
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Defendant.
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JURY DEMAND l
ND JUN 6 1990 AMENDED _ COMPLAINT COMES NOW Plaintiff Anne Rebecca Long in accordance'With the February 27, 1990 Order of the United States District Court for the Northern District of Georgia, Atlanta Division (herefflafter rcferred to as " Transfer Order") and pursuant to Rule 84 of the 1
United States claims Court, transfers.and amends its complaint as L
follows.
l 1.
This is an action brought by a female reactor engineer for 9
the Nuclear Regulatory Commission (hereinaf ter "NRC") for back-pay and liquidated damages, as well as for declaratory and l
injunctive relief under the Equal Pay Act of 1963, as amended, 29-U.S.C. 5206 (d) (hereinafter " EPA")
The Plaintiff seeks back-pay L
'and liquidated damages for the unequal pay she has received since beginning employment with the NRC.
The work she performs is in l
l e
em
all respects equal to the work performed by her male counterparts.
The Plaintiff seeks declaratory and injunctive relief for the retaliatory actions taken against Plaintiff while pursuing her Equal Pay Act claim, including but not limited to the Defendants' failure to promote her timely.
II.
, JURISDICTION 2.
This Court has jurisdiction under 28 U.S.C.
5 134 6 (a) (2 ) and 5 1491.
This claim was initially pled as part of Lona v.
- 2ech, Civil Action No. : 1:88-ev-263-RCF, (N.D. Ga.),
filed within the statute of limitations.
The EPA portions of said case were transferred to this Court pursuant to the Transfer Order.
III.
VENUE 3.
Venue is proper in this Court.
IV.
PARTIES 4.
Plaintiff Anne Rebecca
- Long, known as Becky to her colleagues, is a female adult resident of DeKalb County.
She has a Bachelor's of Science degree in physics and a Master's degree in Nuclear Engineering.
She has worked for the NRC since o
Tebruary of 1986 as a reactor inspector and reactor engineer.
5.
The United States is a Defendant, '0eing the principal with control over the Nuclear Regulatory Commission.
Mr. Lando W.
Zech, Jr.,
an agent for the United States as the Chairman of the Nuclear Regulatory Commission, is also nominally responsible for these claims.
The relief sought is against the United States for the actions of unequal payment and treatment of women taken by the NRC and/or adopted or knowingly condoned by it and its administrators and supervisors.
The United States and the NRC are hereinafter referred to interchangably.
V.
FACTUAL ALLEGATIONS 6.
Ms. Long was hired by the Defendant on February 10, 1986.
Ms. Long was hired as a Reactor Inspector at a paid grade of GG 12 Step 1,
in the Test Programs Section, Engineering Branch, Division of Reactor Safety, in Region 2 of the NRC.
She has a Masters Degree from the Georgia Institute of Technology in Nuclear Engineering, with a specialization in reactor core physics.
Prior to starting with the NRC, Ms.~Long had ten (10)
E 3
l
years experience in private
- industry, working within her specialty.
7.
Upon employment, Ms.
Long was told that NRC based its salary offer to her upon the pay she had received from her 1
previous employer.
Ms. Long was also informed that NRC rules prevented it from offering her more than 5% over her current 1
salary.
8, NRC has no set salary scale for hirees in her job position who have working experience in the utility industrial or private industry or the military.
Plaintiff therefore was given an initial salary of $31,619 at GG 12/1.
She was hired at a pay grade below the full performance grade level of her position.
Upon information and belief, NRC has conducted no studies of competitivo salary rates for the position at issue in this litigation.
9.
NRC has hired others'to whom it has paid substantially more money as entry salaries than paid to Plaintiff.
The men who have been hired as Reactor Inspector have been hired at the full performance rate of GG 13.
These male reactor inspectors perform substantially the same job functions and have similar roles, skills, responsibilities, experience and' obligations as the Plaintiff.
They work under similar conditions.
Due to the-nature of the industry 'and the historic and continuing wage
-4
disadvantage endured by women, many male hirees who were paid o
more in private industry than women and therefore received higher salary offers from the NRC.
Upon information and belief, this is known and was known to Defendants.
10.
The NRC makes routine exceptions to its informal 5% salary increase rule.
This was not made known to the Plaintiff.
Upon information and belief, this exception has enhanced salaries for men, thus increasing the pay dif ferential between the Plaintif f and other men who perform similar job functions.
11.
Ms.
Long was assigned to a work group supervised by Mr.
Frank Jape.
Upon information and belief, Mr. Jape has in the past discriminated against women in job assignments and in setting their salary.
These actions were known by his supervisors and the NRC.
Insufficient corrective actions were taken to assure that these actions would not reoccur.
12.
Mr. Jape discriminated against the Plaintiff for pursuing her rightful EPA claim.
He improperly denied her overtime and leave, he required shorter response times for filing inspection reports and he used different standards for reviewing the Plaintiff's progress and work than he did for men, rurther, Mr.
Jape failed to promote Plaintiff timely due to her pursuing her EPA claims.
13.
In January of 1987, acting pursuant to federal regulation and NRC policy, the Plaintiff met with her EE0 counselor to initiate an internal grievance procedure.
Thereafter, on or about January 30, 1987, a meeting was held between the Plaintiff, the counselor, Mr. Jape, and his supervisors.
Prior to and since that meeting a pattern of harassment by Mr. Jape has emerged against the Plaintiff and others supporting her.
This has included additional adverse actions, including but not limited to:
the denial of promotion, the destruction of work product, and a pattern of improper sexual and discriminatory statements.
Upon information and belief these actions were known by Mr.
Jape's supervisors and corrective actions have not'been taken.
14.
Ms.
Long was denied a
timely promotion based upon retaliation for her pursuing her EPA claim.
Once Plaintiff had been moved from under Mr. Jape's supervision, she quickly gained promotion.
Nonetheless, Defendant violated Plaintiff's EPA rights by paying her an improper entry salary, and by delaying her rightful promotion (both within and between grades) which resulted in loss of pay and loss of the right to compete for additional promotions for which she was qualified.
This transfer had the effect of delaying Plaintiff's eligibility for promotion and promotional opportunities for which she was otherwise entitled and qualified.
15.
Ms. Long was in EE0 counseling, a preliminary step in the
grievance process, through February of 1987.
On March 12, 1987 she filed a formal EE0 complaint, raising Title VII and EPA allegations.
The agency responded asserting that they would reserve " acceptance" of the complaint until after additional investigation and information.
Ms.
Long was referred by the agency to EEOC to file an administrative complaint under the EPA.
As of the date of this filing it is more than 180 days since the administrative, complaint was filed and the agency has not taken final action.
Upon information and belief the EPA complaint was never investigated.
16.
During the course of the agency EE0 investigation materials concerning the investigation were improperly released.
Mr. Jape harassed witnesses and potential witnesses.
This was known by i
11Rc and insufficient actions were taken to remedy or correct these actions.
17.
i Since the filing of the EE0 complaint improper and discriminatory performance reviews have been completed concerning the Plaintiff. Additionally, upon information and belief improper and untrue information has been spread by Mr. Jape, with the knowledge of others including those in supervisory positions.
These have been retaliatory and in an effort to prevent Plaintiff from pursuing her EPA claim.
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CLAIMS FOR RELIEF
-EQUAL PAY ACT COUNT 1 18.
'l Plaintiff reavers paragraphs 1 through 17.
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19.
The Plaintif f is - an employee and the United States and ' the NRC are employers within theLmeaning of those - terms - under the i
EPA.
The United States and the-NRC are enterprises under the EPA.
Federal agencies and the'U.S. Government'are subject to.the EPA.
The practices and policies of the United States ' and the NRC have resulted in the. payment of higher wages to men than to l
Plaintif f. for equal work. on - the. job which. requires equal skill, effort and responsibility under similar working conditions.
S,gg,
l y
'i 29 U.S.C.
5206(d) (1).
e impact of this ' practice is that the-j Plaintiff, as a woman, has been -improperly and substantially underpaid.
This gives rise.to,a claim for relief:under the EPA for back-pay, declaratory and injunctive relief.
20.
a L
The. actions of the NRC were knowing =and willful, within the 3
meaning of those terms under the-EPA.
See, 29 U.S.C. 5 2 60.
The i
NRC was aware of the pay - dif ferentials, aware of the impact 'o n l
the Plaintiff and other women, and aware'that it was a covered employer under the EPA.
This gives rise to' a claim for: relief ~
for liquidated damages at least equal to the back pay award.
-8 e
H s
c CLAIMS OF RETALIATION COUNT 2-21.
Plaintiff reavers paragraphs 1 through 20.
l 22.
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Since the initial counseling session with the EEO counselor the Plaintiff-was subjected to retaliatory and improper employment, personal actions'and conditions.
These range from discriminatory job assignment to overt harassment to sexual remarks.
The Plaintiff was denied-a promotion on a timely basis l
and has had to, transfer, adversely affecting her rate of pay and i
fu'ture promotlon opportunities.
The NRC is aware of the acts of retaliation taken by its supervisors against ~ the - Plaintif f,and' the NRC has failed to take appropriate measures to ' thwart the same.
These actions give rise to a ' claim f o r - b a c k - p a y,,
~ l declaratory and'injunctive relief under both the EPA.
1 i
WHEREFORE the Plaintiff prays this Court to:
1.
Take jurisdiction of this matter;-
2.
Grant - her back-pay and liquid; damages under her EPA claims; 3.
Grant her back-pay, promotion, liquidated -damages, declaratory and injunctive relief under herl claims of
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retaliation for Plaintiff pursuing her EPA rights; i
4.
Grant her' prejudgment interest, costs and attorney i
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4.
-Grant'her prejudgrent interest, costs and attorney fees; 5.
Grant her a trial by jury as required by law;
- and, 6.
All-other and further relief this court deems just and proper.
This 5th day of' June, 1990.
n f
i pg M f, N~
-JONATHAN A.
Z;MRING Georgia State Bar No. 78 250 Attorney for Plaintiff.
Lipshutz, Greenblatt & King 2300 He*vis Tower 233 Peachtree Street Atlanta, Georgia 30043 i
(404) 688-2300 1
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UNITED STATES COURT OF APPEALS g g 7 gx FOR THE NINTH CIRCUIT-CATWY A. CA1TE.03. CLC#X
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- W.S. 99Wni si' APPEA1.0 -
WILLIAM V. UPHOPT,
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Nos. 90-80158-
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90-80159 Plaintiff-Respondent,
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DC# CV-S-90-0060-LKK vs.
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Eastern California
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(Sacramento)'
SACRAMENTO MUNICIPAL UTILITY DISTRICT,-
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et al.,
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ORDER-1
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- , Defendants-Petitioners.
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IEW C. A.10.
Bef' ore:
WIGGINS and TROTT, Circuit' Judges Petitioners' requests for permission to, appeal'under '28 U.S.C.:
2 S 1292(b) are granted.
Petitioners =shall perfect their appeals in-1 accordance-with Fed.
R. App. P. 5(d).
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- i McCal 6/25/90 3
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