Opposition Brief — Warren v. Local 1759, American Federation of Government Employees

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JOSEPH F. SPANIOL, JF

Supreme Court of the United St

OCTOBER TERM, 1985

No. 85-579

IN THE

WALTER WARREN,

Petitioner,

Vv.

LOCAL 1759, AMERICAN FEDERATION

OF GOVERNMENT EMPLOYEES,

Respondent.

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the Eleventh Circuit

RESPONDENT'S BRIEF IN OPPOSITION TO

PETITION FOR A WRIT OF CERTIORARI

STUART A. KIRSCH

STAFF COUNSEL

AMERICAN FEDERATION OF

GOVERNMENT EMPLOYEES

AFL-CIO (FIFTH DistTRICT)

510 Plaza Drive, Suite 2510

College Park, Georgia 30349

MARK D. ROTH

Counsel of Record

GENERAL COUNSEL

AMERICAN FEDERATION OF

GOVERNMENT EMPLOYEES,

AFL-CIO

1325 Massachusetts Ave.,

Washington, D.C. 20005

(202) 737-8700

Attorneys for Respondent

Ee

CRAFTSMEN GRAPHICS, INC.—374 MAYNARD TER. SE SUITE 228, ATLANTA, GA. 30316—(404) 371-8359 }

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(i)

QUESTION PRESENTED

Whether a federal employee can invoke the jurisdic-

tion of the Federal courts to adjudicate a duty of fair

representation action against the employee’s exclusive bar-

gaining representative.

(iii)

TABLE OF CONTENTS

Page

Oe ee a ee eee ee eee i

EEA EE Sa Sn a ine l

Ne PERIOD: vc wcdswensccccnncccnces 3

Argument for Denying the Petition for Certiorari 5

I. The Civil Service Reform Act Scheme,

Legislative History and Major

Distinctions with Private Sector Law

Demonstrate Clearly that Congress

Intended No Independent Federal

Court Jurisdiction Over Duty of Fair

Representation Actions by Federal

Employees Against Their Exclusive

ER reer 5

II. There is No Pertinent or Valid

Consideration Dictating Review of this

Question on Certiorari. ........... 13

Comets 6 ATS Fe CVC aE ER Web's Cech ek ces 16

(iv)

TABLE OF AUTHORITIES

Cases: Page

Amalgamated Association of Street, Electrical,

Railway and Motor Coach Employees of

America v. Lockridge, 403 U.S. 274 (1971).. 7

Butler v. AFGE, slip op. Civil Action No.

C-81-482 (N.D. Ohio 1982) ............... 13

Carter v. Kurzejeski, 706 F.2d 835 (8th Cir. 1983) 6

Clark v. Mark, slip op. No. 79-CV 777(N.D. N.Y.

CO ess oh ocak kcal cd Es sketdeee ss 6

Columbia Power Trades Council v. U.S. Dept. of

Energy, 671 F.2d 325 (9th Cir. 1982) ....... 6,7,9,11

DelCostello v. International Brotherhood of

ro a Bai | ae 7,10

Ford Motor Co. v. Huffman, 345 U.S. 330 (1953) 10

Holly v. Local 1534, AFGE, Civ. Action No.

$C4536-82 (D.C. Super. Ct. 1983) ......... 13

In re Carter, 618 F.2d 1083 (Sth Cir. 1980) ... 8

Karaholios v. Defense Language Institute, 543 F.

Supp. 1201 (N.D. Cal. SPMD Ae wesde accuses 13,14

Local 926, Int? Union of Operating Engineers v.

Jones, 460 U.S. 669 (1983)................ 12

Martel v. Carrol, 562 F. Supp. 675 (N.D. Cal.

PE sch ansnccabas\dcseweneskechsuss 64 6

Miranda Fuel Co., 140 NLRB 181 (1962)..... 10

NFFE Local 1263 v. Commandant, Defense Lan-

guage Institute, 493 F. Supp. 675 (N.D. Cal.

SE ba ec ESA RRGN CREA Se Lv KECN ROMER K Aue 6,9

San Diego Building Trades Council v. Garmon,

po Be, A Treen a 12

Sears Roebuck and Co. v. Carpenters, 436 U.S.

ROE 5 ck 1500 Sovwdces eee Wax beecsas 12

(v)

TABLE OF AUTHORITIES—Continued

Cases-Continued

Steele v. Louisville and Nashville RR, 323 U.S.

EL ERR A ret yer eee eee 10

Vaca v. Sipes, 386 U.S. 171 (1967) ........... 7,10,12

Wilson v. United States, Appeal No. 84-5735, slip

Om, CONE CAR Fees ~ keene ceacacsavccccensd 13

Yates v. U.S. Soldiers’ and Airmens’ Home, 553

F Sep. 46) CEATAG, TRS) aa kncveksancas 7,9

Statutes and Court Rules:

Federal Service Labor Management Relations Statute

(Title) VII of Civil Service Reform Act)

S UG Pee Oh Gia sine fice doe cee Levan 3,6,11

De hh hea hae As EWR nde ed wee we 3

DR I Sv bie Hadin's Fs eRe deed dR eS bee 3,8,11

D Mee eS Aaa ke £0 dake Soc bck Ween oe 3,11

FREE Nosh be klbernesN caved Sanwa 3,11

Se TE Nu ahaa pepe deedeeheussaaues 6

Judiciary and Judicial Procedure

PR EO Ros SE No PP err re eee eee 8

Labor Management Relations Act

29 U.S.C. § 185, (Sec. 301 of LMRA) ....4,5,7,8,9,11,12

National Labor Relations Act see e eee eeseeeeeeees 4,11

Supreme Court Rule

eal a kG bi wie aimee ys dee aided 13,14

Treatises:

Moore’s Federal Practice 44 817.21 (2d ed. 1985)

No. 85-579

IN THE

Supreme Court of the Hnited States

OCTOBER TERM, 1985

WALTER WARREN,

Petitioner,

v.

LocaAL 1759, AMERICAN FEDERATION

Or GOVERNMENT EMPLOYEES,

Respondet.

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the Eleventh Circuit

RESPONDENT'S BRIEF IN OPPOSITION TO

PETITION FOR A WRIT OF CERTIORARI

STATEMENT OF THE CASE

Respondent AFGE Local 1759 supplements the Petitioner's

Statement of the Case as follows to the extent necessary to

correct inaccuracies or omissions in that statement.

AFGE Local 1759 declined to take Mr. Warren's first five

day suspension to arbitration after a thorough consideration

of the matter. The FLRA Regional Director refused to issue

an unfair labor practice complaint after conducting an

investigation of this matter, including procuring sworn

statements from all individuals with relevant information

about the charge. By letter dated August 4, 1983 the Regional

Director found that the evidence clearly shows that “the

Union’s Executive Board met on June 6, 1983, discussed your

2

{Mr. Warren's] grievamce and voted unanimously not to

invoke arbitration on the basis that the grievance lacked merit.

Thereafter, on or about June 12, 1983, Wood [Local 1759

President at that time] informed you of the Executive Board's

decision.” The Regional Director concluded that the charged

party’s refusal to proceed to arbitration was not based on a

lack of membership status, and there was no evidence that the

Union’s actions were discriminatory, arbitrary, in bad faith or

based on any unlawful considerations. Mr. Warren filed an

appeal of that refusal to issue an unfair labor practice

complaint to the FLRA General Counsel, who acknowledged

receipt of this appeal by letter dated October 28, 1983, and

noted an absence of the required notice to the charged party,

Local 1759.

What Petitioner's recitation of the Statement of the Case

fails to elucidate is that Mr. Warren’s institution of a lawsuit

in the U.S. District Court on September 30, 1983 occurred

during the pendency of the appeai of the first unfair labor

practice charge to the FLRA General Counsel and during

the pendency of the investigation of the second unfair labor

practice charge by the Regional Director.

By letter dated January 26, 1984 the General Counsel of

the FLRA denied Mr Warren’s appeal on the first unfair

labor practice charge. The General Counsel indicated, inter

alia, that:

the evidence shows that the Charged Party’s President,

who met with you several times and discussed your

grievance in some detail, thoroughly explained it to the

members of the executive committee. Moreover, it was

concluded, :n agreement with the Regional Director,

that the evidence adduced by the investigation fails to

show that the Charged Party chose not to proceed to

arbitration with your grievance because you are not a

member of Local 1759 or because of any other

unlawful consideration.

3

With respect to the second unfair labor practice charge by

Mr. Warren regarding Local 1759's refusal to take a second

10 day suspension for further alleged misconduct to

arbitration, the Regional Director again, after a thorough

investigation of the matter, refused to issue a complaint. By

letter dated October 31 ,1983, the Regional Director again

found no evidence that the refusal to proceed to arbitration

with Mr. Warren’s grievance was because of lack of

membership status, or the filing of the previous unfair labor

practice charge. Similarly, the General Counsel of the

FLRA, by letter dated January 30, 1984 confirmed the

Regional Director’s finding of no evidence of any arbitrary,

discriminatory or bad faith conduct in refusing to take the 10

day grievance to arbitration. Mr. Warren’s charges were thus

fully considered by the FLRA in both instances.

The decisions of the U.S. District Court for the Northern

District of Georgia and the Eleventh Circuit Court of

Appeals are set forth in the Appendix attached to Mr.

Warren's Petition for a Writ of Certiorari.

SUMMARY OF ARGUMENT

The statutory scheme of Title VII of the Civil Service

Reform Act (CSRA) provides for employee redress of a

breach of the duty of fair representation by his/her exclusive

representative in the nature of back pay and other appropriate

relief, by virtue of the unfair labor practice mechanism. 5

U.S.C. Section 7101. et seq. That statute sets forth in explicit

terms the duty of fair representation owed by labor

organizations to bargaining unit members, 5 U.S.C. Section

7114(a) (1), and the procedures for Federal Labor Relations

Authority (FLRA) investigation, prosecution, and

mandatory relief where unfair labor practices are alleged and

demonstrated, 5 U.S.C. Sections 7105, 7116, 7118. The

unambiguous language of Title VII of the CSRA provides for

4

federal jurisdiction in only three circumstances, permiting an

individual employee, union or employer to seek judicial relief

only to the federal circuit courts of appeals on prescribed final

orders of the FLRA.

The case precedent, in virtual uniformity, has determined

that Congress has vested the FLRA with exclusive jurisdiction

in administering the federal !abor management relations pro-

gram, and that it is manifestly the expressed desire of Con-

gress to create an exclusive statutory scheme, depriving the

district courts of jurisdiction. On the exact issue of duty of fair

representation suits brought by Federal employees, every

court considering the matter, with the sole exception of a

District Court in California, has specifically found that it

lacked subject matter jurisdiction. As recognized by the

Circuit Court below, that California district court’s finding of

general federal question jurisdiction was based on two faulty

premises: the assumed lack of an explicit duty of fair

representation provision in the CSRA (as in the case of its

Nationa! Labor Relations Act [hereinafter NLRA]

counterpart) and the perceived inability of the FLRA to

provide individual relief to an employee aggrieved by a breach

of the duty of fair representation.

Furthermore, Petitioner fails to recognize the hybrid nature

of a duty of fair representation/ breach of contract action. Mr.

Warren’s complaint in the District Court alleged a breach of

the union’s duty of fair representation in its administration of

ihe collective bargaining agreement, which grievance and

arbitration procedure is the sole avenue for challenging the

underlying employer imposition of suspensions. Duty of fair

representation decisions concerning similar issues in the

private sector, i.e. refusal to proceed to arbitration for

allegedly improper reasons, have relied on Section 301 of the

LMRA, 29 U.S.C. Section 185, as the jurisdictional predicate,

recognizing also that Section 301 represents a Congressionally

created exception to the preemption doctrine. However,

5

Section 301 does not confer juristiction in this case because

Section 301 is inapplicable when the federal government is

sued. Congress did not enact in the FLRA a provision

analgous to Section 301 of the LMRA, and indeed deleted a

provision that would have provided a private cause of action.

Congress recognized the special requirements and needs of the

federal government, and entrusted broad powers to the FLRA

to remedy breaches of the duty of fair representation.

Moreover, this case is not an appropriate one for the court’s

exercise of its discretionary writ of certiorari. There is

unanimity among the two federal circuits and various other

courts which have considered this identical issue, and the one

lone dissenting opinion by the aforementioned District Court

in California. The absence of a conflict between the federal

circuits or any constitutional disputes, warrants the denial of

the petition for certiorari.

ARGUMENT FOR DENYING THE

PETITION FOR CERTIORARI

I. The Civil Service Reform Act Scheme, Legislative His-

tory and Major Distinctions with Private Sector Law

Demonstrate Clearly that Congress Intended No

Independent Federal Court Jurisdiction Over Duty of

Fair Representation Actions by Federal Employees

Against Their Exclusive Representatives.

Petitioner, as the Circuit Court below analyzed, refuses to

recognize or acknowledge the significant differences in the

substance and legislative history of the Civil Service Reform

Act (CSRA) and its private sector counterpart. Indeed,

Petitioner has continually failed to address the genesis of the

duty of fair representation suit in the private sector as

compared to its treatment in the federal statute. The simplistic,

though oft-repeated statement in Mr. Warren’s Petition, that

- —

6

Congress did not expressly limit the federal courts’ subject

matter jurisdiction over federal employees’ fair representation

law suits ignores the statutory framework, legislative history

and case law developed under the CSRA.

In Title VII of the CSRA, 5 U.S.C. § 7101 et seg, Congress

gave the Federal Labor Relations Authority (FLRA) the

power and duties to take necessary and appropriate actions to

effectively administer the provisions of the CSRA. As the

Circuit Court below recognized, Congress explicitly

ernpowered the federal courts to act in only three instances.

First, it makes judicial review of final orders of the FLRA

available only in the appropriate federal circuit court of

appeals. 5 U.S.C. § 7123(a). Second, it provides that the

FLRA may petition a circuit court of appeals for enforcement

of its orders and for appropriate temporary relief or

restraining order. 5 U.S.C. § 7123(b). Third, pursuant to 5

U.S.C. § 7123(d), the FLRA, upon issuing an unfair labor

practice complaint, may petition a federal district court for

temporary injunctive relief. As the courts below recognized,

reading the CSRA as a whole, demonstrates that Congress

intended for the statutory pre~dure before the FLRA to be

deemed exclusive.

The exclusivity of the statutory administrative labor man-

agement scheme in the federal sector has been consistently and

uniformly recognized by the courts to foreclose federal court

jurisdiction. NFFE, Local 1263 v. Commandant, Defense

Language Institute, 493 F.Supp. 675 (N.D. Cal. 1980); Carter

v. Kurzejeski, 706 F.2d 835 (8th Cir. 1983); Martel v. Carroll,

562 F.Supp. 443 (D. Mass, 1983). In Clark v. Mark, No. 79-

CV—777, slip op. (N.D.N.Y., 1980) the court stated that the

“FLRS’ (Federal labor relations statute) legislative history

demonstrates, that the FLRA was intended by Congress to

possess and exercise exclusive jurisdiction over cases involving

complaints which allege violations of the FLRS.” In

Columbia Power Trades Council v. U.S. Dept. of Energy, 671

7

F.2d 325 (9th Cir. 1982) the court held that it had no

jurisdiction over a suit by a federal employee's union seeking

mandamus of an agency administator to implement an

arbitrator’s award. Finding the FLRA was vested with

exclusive jurisdiction, the Court stated that “at no point does

the Act entitle a party to petition a district court for relief.” 671

F.2d 327. Accord: Yates v. U.S. Soldiers’and Airmens’ Home,

553 F. Supp. 461, (D.D.C. 1982)

Most significantly, the Petitioner chooses to completely

ignore the core of the opinion of the District and Circuit

Courts below, that despite Congress’ patterning the FLRA in

many respects after the National Labor Relations Board

(NLRB), Congress did not enact a provision in the CSRA that

parallels Section 301 of the Labor Managment Relations Act

(LMRA) (29 U.S.C. 185 (a)). Section 301 of the LMRA pro-

vides in pertinent part:

Suits for violations of contracts between an employer

and a labor organization representing employees inan

industry affecting commerce...or between any such

labor organizations, may be brought in any district

court of the United States having jurisdiction of the

parties.

Thus as the Circuit Court noted, Section 301 confers

jurisdiction of the district court over suits based upon

collective bargaining agreements in the private sector. The

exception to the preemption doctrine created in Vaca v.

Sipes, 386 U.S. 171 (1967) for duty of fair representation

Suits in the private sector was based on the fact that

Congress expressly provided suits for breach of the

collective bargaining agreement in Section 301 of the

LMRA. Accord: Amalgamated Association of Street

Electrical, Railway and Motor Coach Employees of

America v. Lockridge, 403 U.S. 274 (1971); DelCostello v.

Iniernational Brotherhood of Teamsters, 462 U.S.1 (1983).

8

As the Circuit Court below further recognized, there is an

underlying allegation by Mr. Warren that the breach of the

duty of fair representation involved a breach of the collective

bargaining agreement by the Employer in imposing the

suspensions. In addition, as the Court sets forth (Appendix

9a), Mr. Warren in his complaint stated that “Local 1759 has

entered into a collective bargaining agreement with the

plaintiff's employer as a result of its exclusive representation of

the bargaining unit” and “Local 1759 owes plaintiff a statutory

duty to fairly represent plaintiff in all aspects of the

administration of the collective bargaining agreement,

pursuant to Sec. 7114a) (1).” The Circuit Court notes

correctly that “if appellant’s [Mr. Warren’s] action had been in

the private sector, Sec. 301 would have been the jurisdictional

basis because the action involved both the duty of fair

representation and breach of collective bargaining agreement

claims.” As the Fifth Circuit set forth in Jn re Carter, 618 F.2d

1093, 1103 (Sth Cir. 1980) “[i]t is only when the allegations in

the complaint assert a breach of the duty of fair representation

without a corresponding breach of the collective contract, that

Federal question jurisdiction is not grounded on Section

301."1 /

Section 301 of the LMRA governing private sector labor

relations is clearly inapplicable to suits involving the federal

sector. 29 U.S.C. § 152.

The CSRA, governing federal sector labor relations,

contains no provisions analogous to Section 301 of the

LMRA. Not only is there no provision in the CSRA

1/ It is only then that the courts in private sector cases have turned

to 28 U.S.C. i337 regarding actions arising under an Act of

Congress regulating commerce. The Petitioner has never asserted

jurisdiction under 28 U.S.C. 1337 as it is patent that the CSRA is

not an act affecting interstate commerce.

9

analogous to Section 301, but Congress in enacting the CSRA

did in fact consider and rejeci a proposed provision similar to

section 301. As the Circuit Court below set forth, the court in

Yates v. U.S. Soldiers’ and Airmens’ Home, supra, analyzed

the legislative history of the CSRA and discussed the

significance of no Section analogue:

The failure of Congress to provide a clear

jurisdictional grant to district courts over disputes

involving public sector labor agreements is

particularly telling when compared with the approach

taken by Congress in the private sector...The Civil

Service Reform Act contains no provision analogous

to § 301. Not only is the Act silent on the point, but the

legislative record indicates that Congress did in fact,

consider and reject a proposed provision similar to §

301 when it enacted the Act.

Similarly in NF FE v. Commandant, supra, 493 F. Supp. at

681, n. 13, this very analysis of the non-existence of a Section

301 parallel was thoroughly considered, with the court finding

no legislative or judicial exception to the preemption doctrine.

In Columbia Power Trades Council v. U.S. Dept. of Energy,

supra, the court reached the same conclusion and added

“[g]iven the abroad purpose of the Act to meet the special

requirements of government, the leadership role of the

Authority [FLRA], and the limited role of the judiciary in the

statutory scheme, it is manifestly the express desire of

Congress to create an exclusive statutory scheme.”

Moreover the Petitioner ignores the genesis of the duty of

fair representation claims in the private sector and the

significance of an explicit duty of fair representation provision

in the CSRA, not found in its private sector counterpart.

Although the NLRA does not explicitly impose a duty of

fair representation, court decisions have established that

under that Act, as under the Railway Labor Act, a union hasa

10

duty to represent fairly the employees for whom it acts as

exclusive bargaining agent. Steele v. Louisville and Nashville

RR, 323 U.S. 192 (1944); Ford Motor Co v. Huffman, 345

U.S. 330 (1953). The NLRB however did not recognize that a

breach of the duty of fair representation amounted to an

unfair labor practice until its’ decision in Miranda Fuel Co.,

140 NLRB 181, 51 LRRM 1584 (1962) enf. denied, 326 F.2d

172 (2nd Cir. 1963). However, in Vaca v. Sipes supra, this

Court implied, but declined to state specifically, that a breach

of a union’s duty of fair representation constitutes an unfair

labor practice under Section 8(b) of the NLRA. In considering

the preemption issue and rejecting it, the Court declared it

could not assume from the NLRB’s “tardy assumption of

jurisdiction” in duty of fair representation cases that Congress

“intended to oust the courts of their traditional jurisdiction to

curb arbitrary conduct by the individual employee’s statutory

representative.” This Court referenced the fact that the NLRB

waited until 1962 before deciding that such a breach of duty

constituted an unfair labor practice, Miranda Fuel, supra2/.

Thus the concept of a judicial cause of action for breach of

the duty of fair representation arose in the private sector prior

to any recognition by the NLRB of unfair labor practice

jurisdiction over a breach of a duty of fair representation it

later construed as implied in the statute. The history of the

CSRA is profoundly different. The CSRA provides for an

explicit duty of fair representation by unions to employees

2/ Indeed, the Supreme Court has never specifically affirmed

the NLRB’s Miranda Fuel rule again stating in DelCostello v.

International Brotherhood of Teamsters, supra “We have twice

declined to decide the correctness of the Board’s [Miranda Fuel]

position, and we need not address that question today.”

Notwithstanding, this implicit duty in the private sector was not

specifically recognized by the NLRB until after its inception in the

courts.

Il

over which it has exclusive jurisdiction by the language in 5

U.S.C. 7114(aX1). This section provides:

An exclusive representative is responsible for

representing the interests of all employees in the unit it

represents without discrimination and without regard

to labor organization membership.

Therefore, apart from the special needs and requirements

of federal labor management relations, 5 U.S.C. § 7101; the

clearly circumscribed nature of appellate review, Columbia

Power Trades Council v. Dept. of Energy supra; and the

absence of an LMRA Section 301 analogue in the CSRA;

there is a compelling difference in the statutes governing the

union’s obligation to employees it represents in the federal

and private sector. By statute, there is an unequivocal duty

of fair representation owed by federal employee unions to

employees over which they have exclusive jurisdiction, and

any finding of breach of that duty is within the exclusive

purview and remedial powers of the FLRA. Apart from

similar unfair labor practices enunciated in the NLRA, the

CSRA contains an additional catch-all unfair labor

provision at 5 U.S.C. § 7116(b) (8) to “otherwise fail or refuse

to comply with any provision of this chapter,” specifically

here the express duty of fair representation. Furthermore, 5

U.S.C. 7118(a) (7) affords total redress to an individual

employee affected by a breach of duty of fair representation

as it provides that upon finding an unfair labor practice the

FLRA shall issue an order requiring reinstatement, back

pay or such other relief as will carry out the purpose of the

statute. As the court below recognized, the FLRA has not

hesitated to exercise its untrammeled jurisdiction, and

invoke its full remedial powers, where appropriate.

Therefore, the courts which currently have chartered the

parameters of their jurisdiction in these federal sector duty

of fair representation matters, have recognized that they

need not be burdened with their predecessor court’s

12

concerns, in devloping a judicial cause of action in the

private sector for breach of this duty in the 1940’s and 1950's,

that employee actions may not be redressible. Moreover, as

provided infra, Congress explicitly rejected a private cause

of action in the federal sector.

Additionally, the purpose behind the preemption doctrine

is particularly significant in the context of a duty of fair

representation charge under the federal labor management

statute. There is a clear decision by Congress to vest in one

administrative agency nationwide jurisdiction to adjudicate

controversies within the Act’s purview. Local 926, Int?

Union of Operating Engineers v. Jones 460 U.S. 669 (1983).

The alleged conduct at issue is clearly covered by the CSRA,

and does not touch on interests deeply rooted in local feeling

or responsibility. San Diego Building Trades Council v.

Garmon, 359 U.S. 236 (1959), Sears Roebuck and Co. v.

Carpenters 436 U.S. 180 (1978). The subject matter of the

instant complaint is identical to the claims which were

actually presented by Mr. Warren to the FLRA, whose

exclusive function is to carry out the purposes of Title VII of

the CSRA. The risk of interference with the FLRA’s

jurisdiction is obvious and substantial. The FLRA’s

unequivocal unfair labor practice jurisdiction, interpreting

an explicit duty of fair representation statute, dictates

preemption, even assuming any general basis for invoking

the federal court’s jurisdiction, which there is none.

As provided herein, the carving out of an exception to the

preemption doctrine in the private sector in Vaca v. Sipes,

supra was based in large part on considerations not

applicable to the federal statute, because of the rationed

absence of a section 301 analogue. As the circuit courts

considering this issue have uniformly concluded, the

conscious deletion by Congress of a Section 301 analogue in

the CSRA, the capable resolution of all matters exclusively

in the FLRA, the special requirements of government, and

13

the explicit narrowly created judicial scheme, dictate a

different result.

II. There is No Pertinent or Valid Consideration Dictating

Review of this Question on Certiorari

The sole reason formulated by Petitioner for granting the

petition in Part II of his argument is that a decision by this

court is necessary to settle an important question of law

affecting federal employees, on which federal courts have

issued conflicting opinions.

Quite unlike the status of the law on this issue as portrayed

by Petitioner, there is absolute consistency among the federal

circuits and lower courts that have considered this matter, and

one lone dissenting assertion of jurisdiction by a Northern

District of California District Court in Karaholios v. Defense

Language Institute, 543 F. Supp.1201 (N.D. Cal. 1982).

The federal circuit court below and the Third Circuit in

Wilson v. United States, Appeal No. 84-5735, slip op. (3rd Cir.

1985) however have held that federal courts have no subject

matter jurisdiction over duty of fair representation cases

brought by federal employees against their exclusive

representatives. Similarly in Butler v. AFGE, Civil Action No.

C-81-482, slip op. (N. D. Ohio. 1982) the court granted the

exclusive representative’s motion to dismiss the duty of fair

representation complaint for lack of subject matter

jurisdiction. Accord: Holly v. Local 1534, AFGE, Civ. Action

No. SC 4536-82 (D.C. Super. Ct. 1983).

Supreme Court Rule No. 17 provides clearly that a review

on a writ of certiorari is discretionary and will be granted only

when there are special and important reasons therefor. A

recitation in Rule 17 of the general character of reasons that

will be considered in ruling on a petition for certiorari nowhere

suggests that it would be appropriate to consider a petition for

14

certiorari where there is absolute consistency among the

federal circuits that have ruled on the issue and a singular

contrary ruling by a federal district court in a different circuit.

With respect to conflicts in the federal courts, Rule 17 provides

that a consideration of a case could be made if there is conflict

among the federal circuits, although even a conflict among

circuits does not mean an automatic grant of certiorari.

A conflict between a decision of a district court and that ofa

court of appeals is not, absent extraordinary circumstances, a

sufficient ground to grant the wrt. 13 Moore's, Federal

Practice, 4% 817.21 (2ad ed. 1985). As Professor Moore

further recognizes in citing Harlan, Manning the Dikes, 13

Record NYCBA 541,552 (1958).

Generally speaking, nothing short of a difference

of decisions between two Courts of Appeals or

between a Court of Appeals and the Court of

Claims, whose judgments are reviewable directly by

the Supreme Court will suffice to satisfy the conflict

rule.,.A conflict of decisions between two district

courts is not a ground for certiorari since resolution

of such a conflict is a matter resting with the Courts

of Appeals. Nor except in very rare instances will a

conflict between a decision of the Court of Appeals

and that of a district court in some other circuit

suffice. 13 Moore’s Federal Practice, V4 817.21 (2d

ed. 1985).

Indeed, the Circuit Court below specifically addressed and

repudiated the reasoning of the Northern District of

California court in Karaholios, supra based on its patent

reliance on two faulty premises: first, the alleged lack of an

explicit duty of fair representation provision in the CSRA,

and second, the inability of the FLRA to provide individual

relief to employees aggrieved by a breach of the duty of fair

representation. The Circuit Court, as provided infra,

13

the explicit narrowly created judicial scheme, dictate a

different result.

II. There is No Pertinent or Valid Consideration Dictating

Review of this Question on Certiorari

The sole reason formulated by Petitioner for granting the

petition in Part II of his argument is that a decision by this

court is necessary to settle an important question of law

affecting federal employees, on which federal courts have

issued conflicting opinions.

Quite unlike the status of the law on this issue as portrayed

by Petitioner, there is absolute consistency among the federal

circuits and lower courts that have considered this matter, and

one lone dissenting assertion of jurisdiction by a Northern

District of California District Court in Karaholios v. Defense

Language Institute, 543 F. Supp.1201 (N.D. Cal. 1982).

The federal circuit court below and the Third Circuit in

Wilson v. United States, Appeal No. 84-5735, slip op. (3rd Cir.

1985) however have held that federai courts have no subject

matter jurisdiction over duty of fair representation cases

brought by federal employees against their exclusive

representatives. Similarly in Butler v. AFGE, Civil Action No.

C-81-482, slip op. (N. D. Ohio. 1982) the court granted the

exclusive representative’s motion to dismiss the duty of fair

representation complaint for lack of subject matter

jurisdiction. Accord: Holly v. Local 1534, AFGE, Civ. Action

No. SC 4536-82 (D.C. Super. Ct. 1983).

Supreme Court Rule No. 17 provides clearly that a review

on a writ of certiorari is discretionary and will be granted only

when there are special and important reasons therefor. A

recitation in Rule 17 of the genera! character of reasons that

will be considered in ruling on a petition for certiorari nowhere

suggests that it would be appropriate t » consider a petition for

14

certiorari where there is absolute consistency among the

federal circuits that have ruled on the issue and a singular

contrary ruling by a federal district court in a different circuit.

With respect to conflicts in the federal courts, Rule 17 provides

that a consideration of a case could be made if there is conflict

among the federal circuits, although even a conflict among

circuits does not mean an automatic grant of certiorari.

A conflict between a decision of a district court and that ofa

court of appeals is not, absent extraordinary circumstances, a

sufficient und to grant the writ. 13 Moore’s. Federa!

Practice, 4%] 817.21 (2nd ed. 1985). As Pro’exier “Aoore

further recognizes in citing Harlan, Monning i vites, 13

Record NYCBA 541,552 (1958).

Generally speaking, nothing short of a difference

of decisions between two Courts of Appeals or

between a Court of Appeals and the Court of

Claims, whose judgments are reviewable directly by

the Supreme Court will suffice to satisfy the conflict

rule...A conflict of decisions between two district

courts is not a ground for certiorari since resolution

of such a conflict is a matter resting with the Courts

of Appeals. Nor except in very rare instances will a

conflict between a decision of the Court of Appeals

and that of a district court in some other circuit

suffice. 13 Moore’s Federal Practice, 44 817.21 (2d

ed. 1985). |

Indeed, the Circuit Court below specifically addressed and

repudiated the reasoning of the Northern District of

California court in Karaholios, supra based on its patent

reliance on two faulty premises: first, the alleged leck of an

explicit duty of fair representation provision in the CSRA,

and second, the inability of the FLRA to provide individual

relief to employees aggrieved by a breach of the duty of fair

representation. The Circuit Court, as provided infra,

15

recognized that unlike the NLRA or the Railway Labor Act,

the CSRA provides for an explicit duty of fair representation

and that the FLRA is empowered and has diligently sought

relief to federal employees aggrieved by a breach of the duty of

fair representation.

Petitioner’s suggest «a of an uncertainty in the law

somehow perplexing -ivilian federal employees is simpiy

absurd, in light of thc unanimity in the circuits, and the full

redress available through the FLRA. Nor is there any basis

whatsoever for Petitioner’s suggestion that the “FLRA ad-

ministrative processes are also subject to confusion.”

The case presented involves no Consitutional issues nor

conflict among circuits as to an important federal question.

Therefore there is no basis for granting this petition for

certiorari.

16

CONCLUSION:

The Court of Appeals correctly determined that Congress

conferred exclusive jurisdiction over a federal employee’s duty

of fair representation claim in the FLRA. The unanimity of

this position by the Circuit Courts considering this issue,

militates against granting this Petition for Certiorari.

Respectfully submitted,

STUART A. KIRSCH

STAFF COUNSEL

AMERICAN FEDERATION OF

GOVERNMENT EMPLOYEES

AFL-CIO (FiFtH District)

510 Plaza Drive, Suite 2510

College Park, Georgia 30349

MARK D. ROTH

Counsel of Record

GENERAL COUNSEL

AMERICAN FEDERATION OF

GOVERNMENT EMPLOYEES,

AFL-CIO

1325 Massachusetts Ave.,

Washington, D.C. 20005

(202) 737-8700

Attorneys for Respondent