Department of Commerce, Bureau of the Census v. Federal Labor Relations Authority

Citation: 976 F.2d 882Docket: Nos. 91-2188, 91-2239

Court: Court of Appeals for the Fourth Circuit; October 2, 1992; Federal Appellate Court

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Edward Hanlon, a former Bureau of the Census employee, was discharged for allegedly filing an excessive number of administrative and judicial employment actions against the Bureau. After receiving a 'record of infraction' from his superiors, and prior to any formal notification of his removal, Hanlon filed an unfair labor practice (ULP) charge with the Federal Labor Relations Authority (FLRA), claiming the record was a ULP for disciplining him for exercising his protected rights. Following his discharge, Hanlon filed a grievance against the Bureau. The FLRA's General Counsel subsequently issued a ULP complaint on his behalf, leading to a favorable ruling from an administrative law judge (ALJ). 

The Bureau appealed, arguing that Hanlon's ULP charge was essentially part of his grievance regarding his removal, and that the Merit Systems Protection Board (MSPB) had exclusive jurisdiction over such employment removal cases. The FLRA rejected the Bureau's claims, affirming the jurisdiction and merits of the ALJ's decision. The court agreed with the Bureau, asserting that Hanlon’s grievance claim subsumed his ULP charge, necessitating that he pursue his claims through the MSPB process. 

The discussion highlights the framework established by the Civil Services Reform Act (CSRA), which streamlined the process for federal employment disputes by delineating responsibilities between the FLRA and the MSPB. Under the CSRA, union-related matters like ULPs fall under the FLRA, while issues concerning employment actions like hiring and firing are generally under MSPB jurisdiction. The CSRA prohibits agencies from interfering with employees’ rights, including the right to file complaints without facing disciplinary action.

Victims of alleged unfair labor practices (ULPs) can petition the General Counsel of the Federal Labor Relations Authority (FLRA), which may investigate and hold hearings on the complaint. If the FLRA finds that a governmental employer committed a ULP, it can mandate broad remedial actions to prevent future occurrences affecting all employees. Judicial review of FLRA decisions is available in the U.S. Court of Appeals where the aggrieved party resides or in the District of Columbia. However, the Civil Service Reform Act (CSRA) limits the FLRA's jurisdiction, stating that issues eligible for adjudication under the Merit Systems Protection Board (MSPB) appeals process cannot be raised as ULPs. The MSPB exclusively handles appeals related to adverse personnel actions, such as removals, lengthy suspensions, grade reductions, pay reductions, and short furloughs. 

Edward Hanlon, employed as a statistician/demographer at the Bureau of the Census from 1978 to 1988, was active in union activities and filed numerous ULP charges against the Bureau, with some resulting in favorable FLRA decisions. His supervisor issued a written record of infraction citing unauthorized use of equipment, personal business conduct while on duty, insubordination, and misuse of procedures. Following this, Hanlon filed another ULP charge claiming disciplinary action for exercising his protected rights. Shortly thereafter, he received a letter proposing his removal, based on the same infractions, which is required prior to dismissal. Hanlon amended his ULP charge to include that the proposed removal letter was itself a ULP, claiming it interfered with his rights and those of all Bureau employees.

On January 8, 1988, Hanlon was removed from his position and filed a grievance three days later, contesting his removal as an 'adverse employment action' under § 7512, which required him to utilize the MSPB procedure. This grievance initiated an additional administrative process distinct from his earlier unfair labor practice (ULP) charge regarding events leading to his discharge. In February 1988, the FLRA's General Counsel issued a ULP complaint against the Bureau, alleging violations of § 7116(a)(1) of the CSRA for referencing Hanlon's prior ULP complaints. An administrative law judge (ALJ) ruled in Hanlon's favor, rejecting the Bureau's claim that the FLRA lacked jurisdiction under § 7116(d) due to Hanlon's MSPB challenge. The ALJ determined that while Hanlon's ultimate removal fell under MSPB's exclusive jurisdiction, his ULP charge targeted the preliminary actions—the record of infraction and the proposed removal letter—which were separate from his removal and not reviewable by the MSPB. The ALJ issued a cease and desist order, directing the Bureau to remove any references to Hanlon's prior ULP filings from his records but allowed the Bureau to proceed with his discharge without reliance on that information. The FLRA upheld the ALJ's ruling, affirming jurisdiction over Hanlon's ULP claim and finding a violation by the Bureau. The Bureau contested this ruling, asserting that Hanlon's ULP complaint was closely linked to his MSPB challenge, and thus, the MSPB had exclusive jurisdiction. The court is to review FLRA's legal determinations for arbitrariness or lack of adherence to law, granting the FLRA significant deference in applying CSRA provisions in federal labor relations contexts.

Reviewing courts are required to critically assess administrative decisions that conflict with statutory mandates or disrupt congressional intent. Before the Civil Service Reform Act (CSRA), federal personnel action reviews were often unpredictable, deterring managers from taking necessary disciplinary actions due to lengthy appeal processes. The CSRA aimed to streamline this by establishing the Merit Systems Protection Board (MSPB) as the primary administrative body for resolving disputes over adverse personnel actions, while designating the United States Court of Appeals for the Federal Circuit as the primary judicial review body. This structure seeks to create a unified Executive Branch stance and minimize unnecessary lower court involvement, fostering consistency in judicial outcomes.

Congress enacted § 7116(d) to delineate the rights of federal employees regarding the pursuit of employment-related complaints, stating that issues eligible for appeal cannot also be raised as unfair labor practices (ULPs). Employees typically have the option to choose between filing grievances or ULP charges, but once a choice is made, the alternate path is barred. However, certain exceptions apply, particularly for cases where employees can use either the negotiated grievance process or an appeal procedure under sections 7121(e) and (f). In Hanlon's case, his removal qualifies as an adverse personnel action under § 7512, allowing him to appeal to the MSPB, thus precluding the option to raise the matter as a ULP. Consequently, the first sentence of § 7116(d) determines that Hanlon's challenge to his discharge must be directed to the MSPB and cannot be pursued as a ULP.

Hanlon and the FLRA agree that he was required to challenge his ultimate removal through the MSPB procedure, as dictated by the first sentence of § 7116(d). They argue, however, that his earlier challenges to the record of infraction and proposed removal were distinct enough to allow him the option to pursue them as either an unfair labor practice (ULP) or a grievance, under the second sentence of § 7116(d). Hanlon chose to file a ULP, which was resolved in his favor, and they assert that this ruling should be upheld. The appeal centers on whether Hanlon’s earlier challenges are sufficiently separate from his removal challenge to permit multiple administrative proceedings. 

The finding indicates that the actions are inseparable, with sole jurisdiction resting with the MSPB, supported by Congress's intent and prior FLRA decisions. The case of Army Finance illustrates this principle, where an employee’s grievance regarding a suspension was barred after previously filing a ULP on the same issue. The FLRA determined that both procedures raised the same factual and legal questions, regardless of the timing of the proposed versus actual suspension. 

In Hanlon’s situation, the issues in the ULP and grievance were fundamentally alike, both contesting the Bureau's use of alleged misconduct as a basis for action against him. The FLRA's claim that the legal bases differed between the ULP and MSPB challenges is deemed non-determinative; despite different statutory references, the underlying legal arguments were substantially the same. Therefore, the conclusion is that Hanlon could not separate the proposed adverse action from the actual adverse action, given their shared factual and legal foundations.

The FLRA asserts that Hanlon's unfair labor practice (ULP) claim differs from his appeal to the MSPB, as the ULP was filed on behalf of all Bureau employees, while the MSPB case pertains solely to Hanlon's individual rights. This distinction was previously rejected in Army Finance, where an employee’s individual grievance was barred because it was based on the same facts and legal theories as a ULP charge filed by the Union. The FLRA found that the employee was effectively the aggrieved party in the ULP case, thus precluding further grievances. Similarly, Hanlon’s amended ULP charge, although invoking collective rights, primarily focused on his individual situation, making it analogous to his MSPB grievance.

The FLRA's policy argument, which claims that dismissing its position would leave federal employees unable to challenge preliminary disciplinary actions, was countered by the assertion that employees can still file ULP charges for unfair disciplinary actions. Full jurisdiction over adverse actions, however, resides with the MSPB. Hanlon’s challenges, particularly concerning his record of infraction and proposed removal, may be pursued under MSPB procedures related to prohibited personnel practices. The ruling emphasizes that allowing simultaneous claims based on the same facts contravenes Congress's intent in the Civil Service Reform Act (CSRA) to streamline federal employment law. Consequently, the FLRA's decision is vacated, and Hanlon's ULP complaint is dismissed for lack of jurisdiction. Hanlon had chosen to pursue his grievance through the negotiated grievance procedure, now referred to as the MSPB procedure. The Bureau also argued that the ALJ erred in finding a ULP regarding Hanlon’s censure, but this was not addressed due to jurisdictional grounds.