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Clark v. Federal Labor Relations Authority

United States Court of Appeals, District of Columbia Circuit

April 7, 2015

JARED R. CLARK, PETITIONER
v.
FEDERAL LABOR RELATIONS AUTHORITY, RESPONDENT

Argued: October 14, 2014.

On Petition for Review of a Final Order of the Federal Labor Relations Authority.

D. Zachary Hudson, appointed by the court, argued the cause as amicus curiae for petitioner. With him on the briefs was H. Christopher Bartolomucci.

Fred B. Jacob, Solicitor, Federal Labor Relations Authority, argued the cause for respondent. With him on the brief was Zachary R. Henige, Deputy Solicitor.

Before: ROGERS, GRIFFITH, and WILKINS, Circuit Judges. OPINION filed by Circuit Judge GRIFFITH.

OPINION

Page 702

Griffith, Circuit Judge.

This case challenges a decision by the General Counsel of the Federal Labor Relations Authority to settle an unfair labor charge unilaterally after the issuance of a complaint, but before a hearing. Because our precedent holds that such a decision is not a " final order of the Authority" subject to review in this court under 5 U.S.C. § 7123(a), we dismiss the petition for lack of subject-matter jurisdiction.

I

The American Federation of Government Employees, Local 1945 (the Union) is the exclusive representative for all employees in the collective-bargaining unit at the Anniston Army Depot in Alabama.[1] Petitioner Jared Clark is a bargaining-unit employee, but not a dues-paying union member. In November 2008, the Union learned that the Depot was assigning some employees to duties beyond their pay grade without providing additional compensation. The Union filed a grievance on behalf of all bargaining-unit employees seeking that compensation.

In April 2010, the Depot and the Union entered a settlement agreement that provided backpay to the employees who performed the higher-graded duties. According to the settlement, the Union and the Depot would together determine the appropriate settlement amount for the employees from a list of those who might have valid claims supplied by the Union. It fell to the Union to notify Depot employees of the settlement and to gather from them the information needed to process claims. Though Clark had completed work above his pay grade, the Union failed to contact him. When Clark visited the Union office to inquire about the settlement, a representative asked whether he was a Union member. Learning that he was not, the representative told Clark he needed to join that very day. Clark refused to join. Despite this exchange, the Union representative told Clark what he needed to do to submit a claim for inclusion in the settlement. Clark complied, providing the Union log books reporting the times he worked and affidavits from co-workers stating that they had seen Clark performing work above his pay grade.

The Depot and the Union eventually agreed to distribute $303,825 among 218 employees the Union had included on the list. The Union left Clark off the list and put only one person on the list who was not a member of the Union. Depending on the nature of their claims, employees on the list would receive between $300 and $1,970. Upon realizing that the proceeds of the settlement went almost entirely to Union members, Clark filed an unfair labor practice charge with the Federal Labor Relations Authority (the Authority). Following an investigation that identified Clark and fifty-five other nonunion employees whom the Union cut out of the settlement, the Authority's Regional Director

Page 703

issued a complaint on behalf of the General Counsel[2] alleging that the Union had violated 5 U.S.C. § § 7114(a)(1) and 7116(b)(8) by giving preferential ...


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