799 F.

2d 634
123 L.R.R.M. (BNA) 2206, 55 USLW 2163

Sharon K. PHAM, Plaintiff-Appellant,

v.
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 916,
AFL-CIO, Defendant- Appellee.
No. 85-1263.

United States Court of Appeals,

Tenth Circuit.
Aug. 26, 1986.

Sylvia Marks-Barnett, Oklahoma City, Okl., for plaintiff-appellant.

Steven M. Angel of Hughes & Nelson, Oklahoma City, Okl., for
defendant-appellee.
Before McKAY, LOGAN and MOORE, Circuit Judges.
JOHN P. MOORE, Circuit Judge.

This is an appeal from the granting of a motion to dismiss in an action for

breach of the duty of fair representation instituted by a former federal employee
against her union. The trial court held it had no subject matter jurisdiction over
the action because in the adoption of the Civil Service Reform Act of 1978,
Congress had restricted to the Federal Labor Relations Authority exclusive
jurisdiction over disputes between federal employees and their unions. We
conclude such was not the intent of Congress and reverse.

I.
2

After seven years of employment by the United States Department of the Air
Force, appellant Sharon K. Pham was notified she was to be removed from her
position as a supply clerk at Tinker Air Force Base. She contacted a
representative of her union, defendant American Federation of Government

Employees, Local 916, AFL-CIO (Union or defendant). Because the Union had
entered into a collective bargaining agreement with the Air Force, Ms. Pham
sought advice on the procedure to invoke a grievance over her removal.
3

Ms. Pham was advised she could either proceed through the scheme established
in the collective bargaining agreement, or she could initiate a grievance with the
Merit System Protection Board (MSPB). Ms. Pham elected to follow the
statutory procedure before the MSPB and prepared the necessary forms for the
Union to submit. For some reason unexplained in the record, though the papers
were completed, they were not promptly filed by the Union. When the error
was discovered, the papers were mailed, but the mailing was ninety days late
and untimely under 5 C.F.R. Sec. 1201.115(b) (1986). Consequently, the
grievance was dismissed, and an appeal by the Union was denied by the
MSPB. Although Ms. Pham was informed of these circumstances, the record is
unclear about when she learned the Union had failed to timely file her
grievance.

Ms. Pham subsequently initiated a complaint in state court against the Union
averring the Union had breached its contract with her and its duty of fair
representation owed to her under the collective bargaining agreement. The
action was removed to the United States District Court by the Union, which
then moved to dismiss on jurisdictional grounds.

In its motion to dismiss, the Union argued that the complaint brought by Ms.
Pham was within the exclusive remedy of the Civil Service Reform Act of 1978
(CSRA). Describing the duty of fair representation as an express component of
a complex federal regulatory scheme, the Union argued Ms. Pham's private suit
was preempted by the Labor-Management and Employee Relations Act, 5
U.S.C. Sec. 7101 et seq. (the Act), which codifies part of the CSRA and
establishes the Federal Labor Relations Authority (the Authority).
Alternatively, the Union argued Ms. Pham's suit was barred by a six-month
statute of limitations described in DelCostello v. International Brotherhood of
Teamsters, 462 U.S. 151, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983).

In granting the motion to dismiss, the district court did not rule upon the statute
of limitations issue. Instead, it interpreted the Act to provide a presumption of
federal labor preemption, thus mandating the conclusion that Congress
intended the Authority to exercise exclusive jurisdiction over Ms. Pham's
grievance.

Key to the court's analysis was the absence of an equivalent to Sec. 301 of the

Labor Management Relations Act (LMRA) in the Act.1 Moreover, the court
believed deference to the Authority's power to regulate labor-management
relations in the federal sector required entrusting these matters to its expertise.
II.
8

While this case presents an issue of first impression in this circuit, we are
constrained to indicate we break no new ground in holding there is subject
matter jurisdiction in suits of this nature. Our conclusion is hinged not only on
an examination of the Act but also on that precedent which must nourish our
understanding of a union's duty of fair representation. Finally, we cannot
perceive of a just reason, in the absence of clear legislative direction, to
barricade the only remaining avenue of relief for the appellant. Although we
are reluctant to interfere with the otherwise complex labor-management scheme
at issue, we cannot find a justification for preemption under the circumstances
present in this case.

The statutory scheme at issue is the CSRA, Pub.L. No. 95-454, 92 Stat. 1111
(1978),2 which "constitute[s] the most comprehensive reform of the Federal
work force since passage of the Pendleton Act in 1883." S.Rep. No. 969, 95th
Cong., 2d Sess. 1 (1978), reprinted in 1978 U.S. Code Cong. & Ad. News
2723. The CSRA aspired to "promote a more efficient civil service while
preserving the merit principle in Federal employment." Id. These merit
principles represent a continuing concern for a politically neutral, merit-based
administration of the Civil Service system. 3 Conjoined with the enunciation of
merit principles is the CSRA's enumeration of prohibited personnel practices, a
"Bill of Rights" for federal employees. 4 The CSRA was not intended to
supplant or alter constitutional rights but to define a procedure under which
those rights could be asserted. Carter v. Kurzejeski, 706 F.2d 835, 841 (8th
Cir.1983).

10

Title VII of the CSRA, the Act, governs labor-management relations in the
federal service. In the statement of purpose of the Act, Congress announced that
"experience in both private and public employment" indicates that the statutory
protection of the right of employees to organize, bargain collectively, and
participate through labor organizations of their own choosing (a) safeguards the
public interest; (b) enhances the conduct of public business; and (c) facilitates
and encourages amicable settlements of disputes between employees and
employers. 5 U.S.C. Sec. 7101(a). To effectuate these goals, Title VII
establishes grievance and arbitration procedures for federal employees
organized in collective bargaining units.

11

This comprehensive scheme to manage the relations between the employer, the
federal government, and its employees, collectively organized into bargaining
units, did not arise in a vacuum. The Legislative History of the Act states, "It is
intended that unfair labor practice complaints will be handled by the General
Counsel of the Authority in a manner essentially identical to the National Labor
Relations Board practices in the private sector." S.Rep. No. 95-969, 95th Cong.,
2d Sess. 1061, reprinted in (1978), U.S. Code Cong. & Ad. News 2828.5

12

Under the Act, an aggrieved employee may choose a negotiated grievance

procedure or a statutory procedure in which an adverse personnel action is
appealed directly to the MSPB. 5 U.S.C. Sec. 7121(d). Although each
procedure is exclusive, an employee may petition the MSPB for review of the
personnel action undertaken in the negotiated grievance procedure. 5 U.S.C.
Sec. 7121(d). Judicial review of final orders of the Authority is available in the
United States courts of appeal. 5 U.S.C. Sec. 7123(a).6

13

Employee-management relations in the public sector, thus, draw their analog

from the private sector as governed by the LMRA, 29 U.S.C. Secs. 151-169,
and the Railway Labor Act, 45 U.S.C. Secs. 151-181. Both schemes are
premised on the exclusive recognition of a labor organization that has been
properly selected by federal employees. 5 U.S.C. Sec. 7111(a). Because the
union becomes the sole representative of federal employees in contract
negotiation and enforcement of the collective bargaining agreement, the Act
requires the union to represent all members of the bargaining unit fairly. This
requirement, referred to as a statutory duty of fair representation, embodies a
continuing judicial concern with protecting individual interests statutorily
subordinated to the union's representation of the bargaining unit.

14

The Supreme Court first recognized the duty of fair representation in Steele v.
Louisville & Nashville & N.R. Co., 323 U.S. 192, 202-03, 65 S.Ct. 226, 232, 89
L.Ed. 173 (1944), a case arising under the Railway Labor Act, and later
extended the doctrine to unions certified pursuant to the National Labor
Relations Act in Ford Motor Co. v. Huffman, 345 U.S. 330, 337-38, 73 S.Ct.
681, 685-86, 97 L.Ed. 1048 (1953). Later, in Vaca v. Sipes, 386 U.S. 171, 182,
87 S.Ct. 903, 912-13, 17 L.Ed.2d 842 (1967), the Court recognized "the duty of
fair representation has stood as a bulwark to prevent arbitrary union conduct
against individuals stripped of traditional forms of redress by the provisions of
federal labor law." Accordingly, the Court concluded, "[a] breach of the
statutory duty of fair representation occurs only when a union's conduct toward
a member of the collective bargaining unit is arbitrary, discriminatory, or in bad
faith." Id. at 190, 87 S.Ct. at 916.7

15

While recognizing that the LMRA reflected important governmental interests

by entrusting labor-management relations in an exclusive agency, the Vaca
court found preemption of a claim for breach of the duty of fair representation
was not warranted. The Court reasoned that the primary justification for
preemption--the need to avoid conflicting rules of substantive law in the labor
relations area and the desirability of leaving the development of such rules to
the agency--were not present in this instance given the "nature of the particular
interests being asserted and the effect upon the administration of national labor
policies." Id. at 180-81, 87 S.Ct. at 912. Unwilling to characterize a breach of
the duty of fair representation as an unfair labor practice, the Vaca court
decided that the National Labor Relations Board did not have exclusive
jurisdiction to resolve the claim. "[T]he unique role played by the duty of fair
representation doctrine in the scheme of federal labor laws, and its important
relationship to the judicial enforcement of collective bargaining agreements in
the context presented here, render the Garmon -preemption8 doctrine
inapplicable." Id. at 188, 87 S.Ct. at 916.

16

The Act, however, postdates Vaca. The district court in the instant action
dismissed the implications of Vaca not only because the decision predated the
Act but also because Vaca involved labor-management in the private sector.
Given the analysis of the right involved and the scrutiny of the policy issues by
the Supreme Court, we believe Vaca continues to provide an analytical model
for our present inquiry.

17

Key to the district court's resolution is the absence of a Sec. 301 parallel in the
Act and the policy assumption that public interests are vastly different from
those in the private sector. We cannot agree with either proposition.
Nevertheless, interpretation of the absence of a Sec. 301 from the Act has
become the basis for disagreement when the question of jurisdiction is raised.
Hence, however meager the decisions in this area, there appears to be a split
among the circuits on whether a federal district court can exercise jurisdiction
over the breach of a duty of fair representation claim.

18

In Warren v. Local 1759, Am. Federation of Gov. Emp., 764 F.2d 1395 (11th
Cir.), cert. denied, --- U.S. ----, 106 S.Ct. 527, 88 L.Ed.2d 459 (1985), the
Eleventh Circuit concluded that the absence of a provision in the Act similar to
Sec. 301 indicated the clear intention of Congress to confer exclusive
jurisdiction in the Authority over a federal employee's duty of fair
representation claim. In contrast, the Fourth Circuit, without a written opinion,
affirmed the district court's holding in Naylor v. American Fed. of Govt. Emp.
Loc. 446, 580 F.Supp. 137 (W.D.N.C.1983), aff'd, 727 F.2d 1103, cert. denied,
469 U.S. 850, 105 S.Ct. 169, 83 L.Ed.2d 105 (1984), that the Act tracks the

LMRA to permit Vaca jurisdiction over a duty of fair representation suit.

Similarly, in Karahalios v. Defense Language Institute, 534 F.Supp. 1202
(N.D.Cal.), reconsideration denied, 544 F.Supp. 77 (N.D.Cal.1982), the district
court held it could exercise subject matter jurisdiction over the plaintiff's duty
of fair representation suit.
19

The Supreme Court has recently cast a new light on this impasse and indicated
a resolution of the problem. In DelCostello, 462 U.S. at 164, 103 S.Ct. at 2290,
deciding which statute of limitations applied in an employee's action against an
employer and a union, the court clarified that:

20 a suit, as a formal matter comprises two causes of action. The suit against the
Such
employer rests on Sec. 301, since the employee is alleging a breach of the collective
bargaining agreement. The suit against the union is one for breach of the union's
duty of fair representation, which is implied under the scheme of the National Labor
Relations Act.
21

(Emphasis added.) Thus, two principles are now clarified. First, for the purpose
of subject matter jurisdiction in fair representation suits, we look not to the
specific language of the LMRA but to its implication. Second, the duty of fair
representation, which is a judicial creation, finds its source in federal law
predating Vaca.

22

Given this concept of duality in an employee's "hybrid" suit, it becomes simple

to recognize why Congress did not enact a Sec. 301 parallel in the Act. Since
the first facet of the employee's action is against the employer, the parallel
would create a waiver of sovereign immunity in the field of federal labormanagement relations. While reasons exist for Congress not to insulate a
private employer from a damage suit by an aggrieved employee, those same
reasons do not apply to the United States. Yet, recalling the distinct analogies
between the LMRA and the Act and the principle that fair representation is a
judicially created, implied duty, it does not follow that Congress intended to
proscribe private actions by federal employees against their unions simply
because it did not create a Sec. 301 twin in the Act. The important public
interest inherent in the duty of fair representation is too great to draw such a
conclusion, and a contrary view negates the statutory history tying the remedial
provisions of the Act to the LMRA.

23

The duty of the union which is the focus of this suit is not the same as the
union's statutory mandate not to discriminate on the basis of union membership
found in 5 U.S.C. Sec. 7114(a)(1). That section does not encompass the same
duty that has been described as the duty of fair representation. The duty of fair

representation is much broader than a simple prohibition against treating union

members differently from other employees in the same bargaining unit.
24

In short, we find a union representing federal employees is under the same

constraints of fair representation as one representing private employees, and to
the extent private employees have access to federal courts to redress grievances
against their unions for breach of fair representation, so, too, have federal
employees. Vaca, 386 U.S. 171, 87 S.Ct. 903; Karahalios v. Defense Language
Institute, 534 F.Supp. 1202 (N.D.Cal.); reconsideration denied, 544 F.Supp. 77
(N.D.Cal.1982).9

25

Although the district court can exercise jurisdiction, we do not imply the
Union's conduct was a breach of the duty of fair representation. This
determination must await a presentation on the merits.

26

REVERSED.

Section 301 of the LMRA, 29 U.S.C. Sec. 185(a), is the jurisdictional predicate
for suits in federal court by an employee against an employer and union

The CSRA appears in scattered sections of titles 5, 10, 15, 28, 31, 38, 39 and 42
of the United States Code

See 5 U.S.C. Sec. 2301(b)

5 U.S.C. Sec. 2301(b). See generally Developments in the Law--Public

Employment, 97 Harv.L.Rev. 1611, 1633-34 (1984)

The House Report on its version of the bill stated, "The Committee intends that
the Authority's role in Federal sector labor-management relations be analogous
to that of the National Labor Relations Board in the private sector." H.R.Rep.
No. 1403, 95th Cong., 2d Sess. 41, reprinted in 1 House Comm. on Post Office
& Civil Service, 96th Cong., 1st Sess., Legislative History of Civil Service
Reform Act of 1978, at 678 (1979). The Senate version was later adopted

The Act expressly provides for appeals to the circuit courts to enforce the
Authority's orders and for appropriate temporary relief or restraining order. 5
U.S.C. Sec. 7123(b). The federal district court has jurisdiction to grant
temporary relief, including restraining orders, to enforce an unfair labor
practice complaint issued by the Authority. 5 U.S.C. Sec. 7123(d)

The Court's use of "statutory" duty may be misleading to one who looks for an
explicit duty of fair representation. We believe the word "statutory" in this
context refers to the duty which evolves from the right of exclusive
representation vested in a union by statute

San Diego Building Trades Council v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3
L.Ed.2d 775 (1959)

The Union contended at oral argument that the statute of limitations applicable
to either the contractual grievance procedure available to Ms. Pham or the
statutory procedure before the MSPB was tolled until Ms. Pham had learned of
the Union's failure to timely process her papers. They have not furnished us
with authority for this contention, and we have found none. The Union's
contention that plaintiff could have, upon receiving the notice of the MSPB's
final action, filed a complaint with the Authority is not contained in either
statute or regulations