On Petition for Review of an Order of the Federal Labor Relations Authority
Before: Sentelle, Henderson, and Roberts, Circuit
The opinion of the court was delivered by: Sentelle, Circuit Judge
The National Treasury Employees Union ("NTEU") petitions for review of the Federal Labor Relations Authority's ("FLRA") decision dismissing NTEU's unfair labor practice complaint as untimely. Specifically, the FLRA found that the statutory filing period for an unfair labor practice charge challenging the failure to comply with an arbitrator's award begins as soon as the award becomes final. NTEU contends that this interpretation is contrary to the clear language of the statute and thus is due no deference. Because we agree with the NTEU we grant the petition for review.
This case arises from the Internal Revenue Service's ("IRS") alleged violation of an arbitrator's award for an unfair labor practice. The Federal Labor Relations Authority ("Authority") was created and is governed by the Federal Service Labor-Management Relations Statute ("FSLMRS"), 5 U.S.C. §§ 7101-7135, to regulate labor-management relations for the federal government. The FSLMRS provides procedures governing the arbitration of labor-management disputes that ensure that arbitration awards are subject to review and are obeyed once upheld by the Authority.
Once an arbitrator grants an award, parties have a 30-day window to file exceptions with the Authority. 5 U.S.C. § 7122. If no exceptions are filed, the award becomes final and binding at the end of that period. Id. As soon as the award is final the agency must take actions required by the award; failure to do so constitutes an unfair labor practice ("ULP"). Id.; 5 U.S.C. § 7116(a)(8).
An aggrieved party may make a charge of an unfair labor practice to the General Counsel, who may then issue a complaint against the agency or union for the ULP. 5 U.S.C. § 7118(a)(1). A statute of limitations applies to these charges: "no complaint shall be issued based on any alleged unfair labor practice which occurred more than 6 months before the filing of the charge with the Authority." 5 U.S.C. § 7118(a)(4)(A). This statute of limitations may be tolled if the ULP was not discovered during the six-month period due to concealment. 5 U.S.C. § 7118(a)(4)(B). The Authority also has permitted equitable tolling of the period in unique circumstances where multiple timely charges were made but dismissed or withdrawn for various reasons. Dep't of the Air Force, HQ 832d Combat Support Group, DPCE Luke Air Force Base, Ariz., 24 F.L.R.A. 1021, 1025-26 (1986) (" Luke AFB ") (citing Burnett v. New York Cent. R.R. Co., 380 U.S. 424, 428-429 (1965) (applying equitable tolling where plaintiff had not "slept on his rights")).
The NTEU is the exclusive representative of a nationwide consolidated unit of IRS employees. During fiscal year 1998 the IRS directed certain employees from the surrounding area to report periodically to the Seattle Headquarters, resulting in increased commuting times for these employees. NTEU filed grievances on their behalf seeking compensation, the IRS refused to pay, and the matter proceeded to arbitration. The arbitrator's award sustained the grievance, ordered the IRS to start compensating employees for increased commuting time, and required the IRS to compile a list of employees who had been affected by these assignments for the purpose of assessing the remedy (presumably an award of back-pay). The list was to be due within 45 days of the receipt of the award.
The IRS filed exceptions to the award which the Authority denied on August 17, 2001. Dep't of the Treasury, I.R.S., and Nat'l Treasury Employees Union, 57 F.L.R.A. 444 (2001). It then filed a motion for reconsideration that was denied on November 27, 2001. Dep't of the Treasury, I.R.S., and Nat'l Treasury Employees Union, 57 F.L.R.A. 592 (2001). The NTEU contacted the IRS to determine whether it intended to comply with the award, but the IRS responded that it did not have definite information because the matter was still being reviewed by the Department of the Treasury. In order to obtain a clearer answer, counsel for NTEU wrote a letter to IRS Area Counsel on January 24, 2002 because more than 45 days had elapsed since the motion for reconsideration was denied and the IRS had not yet provided an employee list. The Area Counsel responded in a letter dated January 31, 2002, stating that the agency "does not have to take any action to implement the Arbitrator's award at this time." The NTEU filed a ULP charge on February 21, 2002, charging that the IRS had violated 5 U.S.C. § 7116(a)(1) and (8) by refusing to comply with the award.
The FLRA General Counsel issued a complaint and filed a motion for summary judgment; the IRS cross-moved for summary judgment arguing that the charge was untimely filed under § 7118(a)(4)(A). The Administrative Law Judge ("ALJ") held that the six-month period for filing had begun when the award was final, on August 17, 2001, and therefore had expired on February 17, 2002. Dep't of the Treasury, I.R.S., and Nat'l Treasury Employees Union, 59 F.L.R.A. 282, 295 (2003). Because the charge was filed on February 21, 2002 and he found no reason to equitably toll the period, the ALJ held that ...