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Lt. Col. Serge Tonetti v. Federal Labor Relations Authority, 776 F.2d 929, 11th Cir. (1985)
Lt. Col. Serge Tonetti v. Federal Labor Relations Authority, 776 F.2d 929, 11th Cir. (1985)
2d 929
120 L.R.R.M. (BNA) 3400
The petitioner, Lt. Col. Serge Tonetti, seeks review of a final decision of the
Federal Labor-Relations Authority (the Authority). In its decision, the
Authority denied exceptions to an arbitration award filed, on behalf of Tonetti,
by Local 1858, American Federation of Government Employees, AFL-CIO (the
Union). The Union had challenged an arbitrator's award which sustained a oneday disciplinary suspension of Tonetti for his refusal to report to a new work
assignment. The Authority has moved to dismiss the petition, arguing that this
court has no jurisdiction to review the Authority's decision in this case. We
agree and accordingly grant the motion to dismiss.
I.
2
Tonetti was employed as a General Engineer, GS-13, with the United States
Army Missile Command, Redstone Arsenal, Alabama (the Agency) and was
II.
4
This case presents a question of first impression in this circuit concerning our
statutory jurisdiction to review the Authority's disposition of exceptions to
arbitration awards. The Fourth and Ninth Circuits have previously ruled on the
jurisdictional question now before us, and we follow their decisions in
concluding that we lack jurisdiction to consider the present petition for review.
See United States Marshals Service v. Federal Labor Relations Auth., 708 F.2d
1417 (9th Cir.1983); American Federation of Government Employees, Local
1923 v. Federal Labor Relations Auth., 675 F.2d 612 (4th Cir.1982).
5
The statutory basis for our jurisdiction is 5 U.S.C. Sec. 7123(a) (1982) 2
wherein Congress has empowered courts of appeals to review final decisions of
the Authority. The statute, however, specifically exempts from the jurisdiction
of the circuit courts virtually all Authority arbitration decisions issued pursuant
to section 7122 unless, the arbitration decision involves an unfair labor practice.
5 U.S.C. Sec. 7123(a)(1); see also 5 U.S.C. Sec. 7116 (1982) (defining "unfair
labor practice").
The Fourth and Ninth Circuits have both recognized Congress' intent, as
expressed in the plain language of section 7123(a)(1), to limit judicial review of
Authority decisions in arbitration cases to those involving an unfair labor
practice as defined by section 7116. As the Fourth Circuit noted:
7
There
can be no doubt that the order sought to be reviewed was rendered under 5
U.S.C. Sec. 7122 and that it involved an award by an arbitrator. The only issue that
we must decide is whether the order also involved an unfair labor practice under
Sec. 7116. If it did then we have jurisdiction to reach the merits; if it did not, then
jurisdiction is lacking.
8
675 F.2d at 613. Similarly, in United States Marshals Service, 708 F.2d at
1420, the Ninth Circuit stated that "where arbitration has been elected and the
Authority reviews exceptions to an award, we have no jurisdiction to review the
Authority's determination unless an unfair labor practice is either an explicit or
a necessary ground for the final order issued by the Authority."
(a) Either party to arbitration under this chapter may file with the Authority an
exception to any arbitrator's award pursuant to the arbitration (other than an
award relating to a matter described in section 7121(f) of this title). If upon
review the Authority finds that the award is deficient-(1) because it is contrary to any law, rule, or regulation; or
(2) on other grounds similar to those applied by Federal courts in private sector
labor-management relations;
the Authority may take such action and make such recommendations
concerning the award as it considers necessary, consistent with applicable laws,
rules or regulations.
2