Department of Transportation, Federal Aviation Administration and Professional Airways Systems Specialists, MEBA (Authority decision, May 24, 1988)

FLRA interlocutory decision. The Authority denies the FAA's request to appeal an administrative law judge's preliminary order. The underlying unfair labor practice complaints remain pending, so this decision does not present a final judicial-review period under 5 U.S.C. § 7123(a).

Plain-English summary

The FAA sought immediate review after an administrative law judge refused to dismiss or narrow unfair labor practice complaints. It cited a Supreme Court ruling that compelling need for agency regulations must be decided through a specific negotiability procedure. The Authority found no extraordinary reason to hear an appeal before the judge issued a decision, especially because the hearing had already concluded. It said the FAA could raise the new ruling in post-hearing briefs and later exceptions. The Authority denied the early appeal without deciding the complaints.

Decision snapshot

• Authority: Interlocutory appeals under 5 C.F.R. § 2429.11; compelling-need procedure under 5 U.S.C. § 7117(b).
• Outcome: Request for early appeal denied; unfair labor practice complaints remain before the judge.
• Key point: The agency could address the Supreme Court ruling through ordinary briefing and later exceptions.

Full text (FLRA public release)

[ v32 p158 ]
32:0158(23)CA

The decision of the Authority follows:

32 FLRA No. 23

UNITED STATES OF AMERICA

BEFORE THE

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

DEPARTMENT OF TRANSPORTATION

and FEDERAL AVIATION ADMINISTRATION

Respondents

and

PROFESSIONAL AIRWAYS SYSTEMS

SPECIALISTS, MEBA, AFL-CIO

Charging Party

Case Nos. 3-CA-70647-1,2

3-CA-70648-1,2; 3-CA-70649-1,2

3-CA-70650-1,2; 3-CA-70651-1,2

ORDER

The Respondents filed a "Request For Special Permission To Appeal Administrative Law Judge's Denial of Respondents' Motion to Dismiss, To Strike, and For Other Appropriate Relief." The General Counsel filed an opposition to the Respondents' request.

The Respondents' request was filed after the Supreme Court issued its decision in FLRA v. Aberdeen Proving Ground, Department of the Army, 108 S. Ct. 1261 (1988). In that case, the Court held that the exclusive procedure for determining whether there is a compelling need for an agency regulation is the procedure set forth in section 7117(b) of the Federal Service Labor-Management Relations Statute, and that a compelling need determination may not be made in connection with an unfair labor practice proceeding. The Respondents assert that under Aberdeen Proving Ground the Administrative Law Judge (ALJ) does not have subject matter jurisdiction over compelling need issues and that if the ALJ is permitted to rule on any aspect of the complaints, they will suffer harm in that they will be required to file briefs and exceptions.

The Respondents' request is an interlocutory appeal of the ALJ's order denying the Respondents' motion. Section 2429.11 of the Authority's Rules and Regulations states that the Authority ordinarily will not consider interlocutory appeals. The Respondents have failed to demonstrate the existence of extraordinary circumstances which would warrant the granting of their request. The issuance of the Court's decision in Aberdeen Proving Ground does not lead to a contrary conclusion. We conclude that the posture of this case makes it particularly unsuitable for granting an interlocutory appeal. A hearing has been held and all that remains before the ALJ issues a decision is the filing of post-hearing briefs. Furthermore, we note that the parties apparently disagree as to the impact of Aberdeen Proving Ground on this case. The Respondents may address the effect of Aberdeen Proving Ground, and any other matters, in their post-hearing brief and in exceptions filed with the Authority after the ALJ issues his decision.

Accordingly, the request is denied.

Issued, Washington, D.C.,

______
Jerry L. Calhoun, Chairman

Jean McKee, Member

FOOTNOTES:
(If blank, the decision does not
have footnotes.)