Wildberger, Robert W v. FLRA

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 17, 1997 Decided January 9, 1998
No. 95-1614
Robert W. Wildberger, Jr.,
Petitioner
v.
Federal Labor Relations Authority,
Respondent
On Petition for Review of an Order of the
Federal Labor Relations Authority
Robert W. Wildberger, Jr., appearing pro se, was on the
briefs for petitioner.
James A. Garcia, argued the cause for amicus curiae on
the side of petitioner, with whom Dana C. Contratto, appoint-
ed by the court, was on the briefs.
James F. Blandford, Attorney, Federal Labor Relations
Authority, argued the cause for respondent. David M.
Smith, Solicitor, and William E. Persina, Attorney, were on
the brief. Pamela P. Johnson, Attorney, and William R.
Tobey, Deputy Solicitor, entered appearances.
Before: Edwards, Chief Judge, Wald and Randolph,
Circuit Judges.
Opinion for the Court filed by Chief Judge Edwards.
Edwards, Chief Judge: Under the Civil Service Reform
Act, codified at Title 5 of the U.S. Code, the Federal Labor
Relations Authority ("FLRA" or "the Authority") is autho-
rized to address charges of unfair labor practices against
federal employers, see generally 5 U.S.C. ss 7101-7135
(1994); s 7116(a)-(c) (defining unfair labor practices), while
the Merit Systems Protection Board ("MSPB" or "the
Board") is authorized to adjudicate employees' appeals from
"adverse personnel actions," including suspensions and termi-
nations of employment. See generally ss 7501-7543, 7701-
7703. At issue in this case is the Authority's interpretation of
the first sentence of 5 U.S.C. s 7116(d), which provides that
"[i]ssues which can properly be raised under an appeals
procedure [before the MSPB] may not be raised as unfair
labor practices prohibited under this section."
Appellant Robert W. Wildberger, Jr., seeks review of the
Authority's order dismissing three consolidated unfair labor
practice complaints against his former employer, the Small
Business Administration ("SBA"), for lack of jurisdiction pur-
suant to section 7116(d). In addressing Wildberger's claims,
the Authority first clarified its rule for determining whether
section 7116(d)'s jurisdictional bar applies. On this point, the
FLRA held that when the factual predicate and the legal
theory underlying an unfair labor practice complaint and a
MSPB appeal are the same, the Authority will decline to
assert jurisdiction over the unfair labor practice complaint.
United States Small Business Admin. and Robert Wildber-
ger, 51 F.L.R.A. 413, 1995 WL 648828, at *7 (F.L.R.A. Oct.
31, 1995) ("Wildberger [FLRA]"). Purporting to apply this
rule, the Authority dismissed all three of Wildberger's consol-
idated complaints on jurisdictional grounds.
We can find no basis for overturning the Authority's rule
for denying jurisdiction under the first sentence of section
7116(d) where: (1) the complaining employee has raised all of
the issues that underscore his unfair labor practice charges--
in terms of both the factual predicate and the legal theories
raised--in his appeal before the MSPB; (2) these issues are
within the compass of the MSPB's jurisdiction; and (3) the
MSPB has not declined jurisdiction over any of the claims
raised by the employee. We find that the Authority correctly
applied this rule in two of the three consolidated complaints.
Our holding is narrowly tailored to the facts of this case and
does not address the application of section 7116(d) where the
factors emphasized here are not present.
I. Background
A. Statutory Scheme
In 1978, Congress enacted the Civil Service Reform Act to
replace the prior "patchwork" system of laws governing fed-
eral employment with "an integrated scheme of administra-
tive and judicial review, designed to balance the legitimate
interests of the various categories of federal employees with
the needs of sound and efficient administration." United
States v. Fausto, 484 U.S. 439, 445 (1988). Prior to the Act,
federal employees could bring employment actions in a vari-
ety of administrative and judicial forums, sometimes leading
to confusing and contradictory results. Under the Act's
simplified scheme, employment matters involving federal em-
ployees' rights to engage in union-related activities generally
may be raised with the FLRA as unfair labor practice
charges, while matters involving hiring, firing, failure to
promote, and the like are within the jurisdiction of the MSPB.
A victim of an alleged unfair labor practice may petition the
FLRA's General Counsel, who determines whether the alle-
gations constitute an unfair labor practice and, if so, files a
complaint on behalf of the party making the allegations. 5
U.S.C. s 7118. The FLRA may conduct hearings to resolve
such complaints. s 7118(a)(6)-(8). Once it determines that a
federal employer has committed an unfair labor practice, the
FLRA is empowered to order broad remedial action prohibit-
ing the agency from engaging in similar activity as to all of its
employees. See ss 7105(g)(3), 7118(a)(7); National Treasury
Employees Union v. FLRA, 910 F.2d 964, 967 (D.C. Cir.
1990) (en banc). Judicial review of FLRA decisions may be
had in either the U.S. Court of Appeals for the circuit in
which the aggrieved party resides or conducts business, or in
the U.S. Court of Appeals for the District of Columbia.
s 7123(a).
The adverse personnel actions over which the MSPB has
exclusive jurisdiction include: "(1) a removal; (2) a suspen-
sion for more than fourteen days; (3) a reduction in grade;
(4) a reduction in pay; and (5) a furlough of thirty days or
less." ss 7512, 7701. Decisions rendered by the MSPB
regarding appeals of such actions are reviewable only by the
United States Court of Appeals for the Federal Circuit.
s 7703(b)(1).
Chapter 23 of Title 5 sets forth Merit System Principles,
including prohibited personnel practices, to guide the MSPB.
ss 2301-2305. These principles prohibit any person who has
authority to take an adverse action against a subordinate
employee from doing so in retaliation for the subordinate
employee's "exercise of any appeal, complaint, or grievance
right granted by any law, rule, or regulation," s 2302(b)(9),
including the exercise of rights referenced in s 7116(a). See,
e.g., Bodinus v. Department of the Treasury, 7 M.S.P.R. 536,
540-41 (1981) (construing s 2302(b)(9) to include union repre-
sentational activities); id. at 541-42 ("[W]hile the Board is
without jurisdiction to adjudicate an unfair labor practice
allegation based on anti-union animus, ... the Board may
properly consider appellant's alleged evidence of anti-union
animus if it is pertinent to showing his affirmative defense of
a violation of 2302(b)(9).").
Section 7116(d) provides:
(d) Issues which can properly be raised under an ap-
peals procedure may not be raised as unfair labor prac-
tices prohibited under this section. Except for matters
wherein, under section 7121(e) and (f) of this title, an
employee has an option of using the negotiated grievance
procedure or an appeals procedure, issues which can be
raised under a grievance procedure may, in the discre-
tion of the aggrieved party, be raised under the griev-
ance procedure or as an unfair labor practice under this
section, but not under both procedures.
This provision is intended to simplify adjudication of employ-
ee rights and avoid the confusing and contradictory outcomes
which could result if parties were permitted to adjudicate the
same issue in a variety of administrative and judicial forums
with overlapping jurisdiction. See Carter v. Kurzejeski, 706
F.2d 835, 839-40 (8th Cir. 1983) ("Th[e] procedural frame-
work [of the Civil Service Reform Act] indicates the care
taken by Congress to preserve the rights of aggrieved em-
ployees while avoiding the problems of overlapping and incon-
sistent jurisdiction. Congress obviously recognized multiple
possibilities for jurisdiction by arbitrators, the FLRA, the
MSPB, and the courts in fashioning this framework.").
B. Wildberger's Claims
Appellant Wildberger was employed by the SBA as a
program analyst from June 1980 until September 1992 when
his employment was terminated. In the year immediately
preceding his termination, Wildberger, a former president of
the American Federation of Government Employees local
that represents SBA employees, formed a rival union, Soli-
darity, USA ("Solidarity"). Wildberger spent considerable
time that year trying to recruit SBA employees to join
Solidarity. Wildberger engaged in his Solidarity-related un-
ion organizing activities during work hours, using agency
resources and equipment such as the SBA e-mail system and
SBA telephones.
Due to clashes between Wildberger and SBA management
over the manner in which he carried out his Solidarity-related
activities, Wildberger filed unfair labor practice charges
against the SBA, which resulted in the FLRA's issuance of
the three complaints at issue here. The threat complaint,
issued July 29, 1992, addressed Wildberger's claim that SBA
supervisor James Charney had threatened to deny Wildber-
ger's training requests and to fire him unless "the conflict
created by the labor organization Wildberger had formed"
stopped. See Complaint and Notice of Hearing (No. 20821),
J.A. 294-96. The proposed removal complaint, issued Octo-
ber 13, 1992, challenged the SBA's issuance on August 3,
1992, of a letter proposing to terminate Wildberger on numer-
ous grounds, including his willful refusal to comply with SBA
directives not to use SBA equipment and official work time to
conduct Solidarity-related business. See Complaint and No-
tice of Hearing (No. 21010), J.A. 326-28. The disparate
treatment complaint, issued November 20, 1992, alleged that
the SBA had discriminated against Wildberger for engaging
in protected activity by inundating him with memoranda,
prohibiting him from using SBA equipment for personal use,
and imposing other restrictions on him, even though other
employees in his bargaining unit were not subject to such
restrictions. See Complaint and Notice of Hearing (No.
21060), J.A. 330-33.
On September 16, 1992, the SBA terminated Wildberger
for the reasons specified in the notice of proposed removal.
See Final Removal Letter, J.A. 494-519. Wildberger appeal-
ed his termination to the MSPB. Wildberger argued to the
MSPB that his termination was unlawful because, inter alia,
(1) the termination was indicative of retaliation and discrimi-
nation based on his exercise of statutorily protected rights, as
alleged in the disparate treatment and proposed removal
complaints, and (2) the SBA official who proposed his remov-
al, James Charney, was motivated by personal animus against
Wildberger. In alleging animus on the part of Charney,
Wildberger referenced the same incidents alleged in the
threat complaint.
On February 7, 1994, an Administrative Law Judge for the
FLRA ("FLRA-ALJ") held hearings on Wildberger's unfair
labor practice complaints. The FLRA-ALJ recommended
that the threat complaint and the disparate treatment com-
plaint be dismissed on the merits, based on his findings that
the evidence presented as to each failed to prove by a
preponderance of the evidence that the SBA had engaged in
an unfair labor practice. J.A. 116, 124-28. The FLRA-ALJ
recommended that the proposed removal complaint be dis-
missed pursuant to section 7116(d) for lack of jurisdiction.
J.A. 119-20 (citing Department of Commerce, Bureau of the
Census v. FLRA, 976 F.2d 882 (4th Cir. 1992)). Both Wild-
berger and the General Counsel for the FLRA filed excep-
tions to the FLRA-ALJ's recommendations.
1. The MSPB Decision
On May 4, 1995, the Administrative Law Judge hearing
Wildberger's MSPB appeal ("MSPB-ALJ") concluded that
the SBA had just cause for terminating Wildberger's employ-
ment. See J.A. 558-95. The Board affirmed the MSPB-
ALJ's decision, in relevant part, on March 6, 1996. Wildber-
ger v. SBA, 69 M.S.P.R. 667 (1996) (modifying in part and
affirming in part). One of the bases for termination upheld
by the MSPB-ALJ was Wildberger's willful refusal to comply
with SBA directives not to use SBA equipment and official
work time to conduct Solidarity-related business. J.A. 569-72
(upholding charge 2 (insubordination)); J.A. 574-75 (uphold-
ing charge 4 (unauthorized use of government property)).
The MSPB-ALJ also considered and rejected Wildberger's
affirmative defenses, including his claim that the proposing
official, James Charney, was motivated by personal animus,
see J.A. 580-82, and his claim that the removal action was
taken in retaliation for protected union activity. J.A. 587-90.
2. The Authority's Decision
On October 31, 1995, the Authority reviewed the FLRA-
ALJ's recommendations and dismissed all three unfair labor
practice complaints on jurisdictional grounds. After first
reviewing its own precedents as well as circuit law interpret-
ing section 7116(d), the Authority clarified its test for deter-
mining whether the jurisdictional bar imposed by the first
sentence of section 7116(d) applies: when the factual predi-
cate and the legal theory underlying an unfair labor practice
complaint and a MSPB appeal are the same, the Authority
will decline to assert jurisdiction over the unfair labor prac-
tice complaint. Wildberger [FLRA], 1995 WL 648828, at *7.
The Authority clarified that, because the FLRACunlike the
MSPBChas jurisdiction to review unfair labor practice
charges brought by labor organizations as well as individuals,
it would retain jurisdiction over charges brought by labor
organizations that focus on the organization's institutional
interests, as opposed to the rights of an individual employee,
notwithstanding any related MSPB appeals brought by indi-
vidual employees. Id. The Authority then dismissed all
three of Wildberger's consolidated complaints as subject to
section 7116(d)'s jurisdictional bar. Id. at *8-9.
Wildberger, acting pro se, appealed the Authority's deci-
sions to this court, and the court appointed amicus curiae
("Amicus") to present arguments on his behalf.
II. Analysis
A. Standard of Review
"[T]he Authority is entitled to considerable deference when
it exercises its special function of applying the general provi-
sions of [the Civil Service Reform] Act to the complexities of
federal labor relations." Bureau of Alcohol, Tobacco & Fire-
arms v. FLRA, 464 U.S. 89, 97 (1983) (internal quotations
omitted). We defer to the FLRA's construction of its en-
abling statute, including its interpretation of its statutory
jurisdiction, so long as it is reasonable and not contrary to
congressional intent. Pension Benefit Guaranty Corp. v.
FLRA, 967 F.2d 658, 665 (D.C. Cir. 1992) (citing Chevron
U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467
U.S. 837, 842-44 (1984)); see also Oklahoma Natural Gas Co.
v. FERC, 28 F.3d 1281, 1283-84 (D.C. Cir. 1994) (applying
Chevron deference to agency's determination of its statutory
jurisdiction). Section 7123(c) provides for judicial review of
the Authority's orders on the record in accordance with the
Administrative Procedure Act, 5 U.S.C. s 706. Accordingly,
we "set aside the FLRA's order only if it is arbitrary,
capricious, an abuse of discretion, or otherwise not in accor-
dance with law." Pension Benefit, 967 F.2d at 665.
B. Clarifying Section 7116(d)'s Jurisdictional Bars
In U.S. Dep't of the Army, Army Finance & Accounting
Ctr. and American Fed'n of Gov't Employees, Local 1411, 38
F.L.R.A. 1345 (1991) ("Army Finance"), enforced sub nom.
American Fed'n of Gov't Employees, AFL-CIO, Local 1411 v.
FLRA, 960 F.2d 176 (D.C. Cir. 1992) ("Local 1411"), the
Authority developed a test for determining whether a griev-
ance brought under a contractual grievance procedure raises
the same issue as an earlier-filed unfair labor practice charge
for the purpose of applying the jurisdictional bar imposed by
the second sentence of section 7116(d) (requiring an ag-
grieved party to choose between a contractual grievance
procedure and filing an unfair labor practice charge with the
FLRA). Under this test,
[i]n determining whether the procedures involved the
same issue, the Authority does not focus on whether the
action was proposed or definite. Rather, the Authority
looks at whether the [unfair labor practice] charge arose
from the same set of factual circumstances as the griev-
ance and the theory advanced in support of the [unfair
labor practice] charge and the grievance are substantially
similar.
Id. at 1350-51. The Authority found that the basic principles
of preclusion outlined in Army Finance should be adopted
here in applying the jurisdictional bar imposed by the first
sentence of section 7116(d). Wildberger [FLRA], 1995 WL
648828, at *7.
We can find no quibble with the Authority's rule, insofar as
it is limited to circumstances where (1) the complaining
employee has raised all of the issues that underscore his
unfair labor practice charges in his appeal before the MSPB;
(2) these issues are within the compass of the MSPB's
jurisdiction; and (3) the MSPB has not declined jurisdiction
over any of the claims raised by the employee. Consistent
with the test articulated by the Authority in Army Finance
and affirmed by this court in Local 1411, the question of
whether a complaining employee raises the "same issues" in
both proceedings does not focus on whether the action was
proposed or definite, but rather on whether the issues raised
in the appeal arose from the same set of factual circum-
stances as the unfair labor practice complaint and the theory
advanced in support of the unfair labor practice charge and
the appeal are substantially similar. Cf. Army Finance, 38
F.L.R.A. at 1350-51, affirmed sub nom. Local 1411, 960 F.2d
at 178.
Our holding is limited to the facts of this case. We decline
to endorse the Authority's rule more broadly, because, frank-
ly, we are unsure just how the rule might be applied in
situations not raised in this case. We also mean to make
clear that we are not placing additional restrictions on the
MSPB. When an employee raises issues for adjudication by
the MSPB, it is for the MSPB to consider how each of the
issues raised bears on the employee's appeal of the employ-
er's adverse action, i.e., whether the adverse action was taken
in retaliation for Appellant's exercise of protected activities or
whether instead the adverse action is to be upheld or re-
versed on some other ground.
Both Wildberger and Amicus argue that this court's deci-
sion in Barnes v. Small, 840 F.2d 972 (D.C. Cir. 1988),
requires a different interpretation of section 7116(d). We
disagree. In Barnes, as here, the plaintiff attempted to raise
the same issues in both an MSPB appeal and an unfair labor
practice complaint. However, the General Counsel for the
FLRA declined to issue a complaint to prosecute the unfair
labor charges alleged by the plaintiff, upon finding that the
plaintiff " 'had knowingly engaged in flagrant misconduct
falling outside of the protection of the [Civil Service Reform
Act].' " Id. at 980-81 (quoting FLRA General Counsel). The
MSPB subsequently declined to exercise jurisdiction over
affirmative defenses that reiterated the unfair labor practice
charges that the FLRA General Counsel had declined to
prosecute. Id. at 981. Significantly, in Barnes, the decision
not to prosecute the unfair labor practice charges was on the
merits, not on jurisdictional grounds pursuant to section
7116(d). In other words, the court in Barnes affirmed the
MSPB's decision to decline jurisdiction in a situation in which
the FLRA General Counsel had already rejected the unfair
labor practice charges for lack of merit. Id. Thus, both the
facts and the legal issues in Barnes were substantially differ-
ent from those at issue here. Barnes did not involve review
of the FLRA's interpretation of its jurisdiction under section
7116(d), the issue presented in the case before us.
Moreover, to the extent that language in Barnes can be
read to suggest that the MSPB can never consider matters
that could properly be raised as unfair labor practices before
the FLRA, such language is dicta. Taken out of context, this
language probably suggests more than the court intended. It
is certainly clear that the MSPB not only can but must
address issues that could properly underlie unfair labor prac-
tice charges where such issues are raised as affirmative
defenses alleging "prohibited personnel practices." See 5
U.S.C. s 2302(b)(9) (1994); Ireland v. Department of Health
& Human Servs., Social Security Admin., 34 M.S.P.R. 614(1987); Bodinus, 7 M.S.P.R. at 540-42. Barnes does not
foreclose this possibility. The decision in Barnes would be
problematic only if the FLRA had dismissed the unfair labor
practice complaints at issue in that case under section 7116(d)
and then the MSPB had declined to consider the affirmative
defenses raised by the employee. In such a situation, the
employee would be without a forum in which to raise his
complaints. That did not happen.
Notwithstanding the Authority's stated exception for re-
taining jurisdiction over unfair labor practice charges focus-
ing on the institutional interests of labor organizations, Ami-
cus argues that, by refusing to exercise jurisdiction over
unfair labor practice complaints focusing solely on individual
rights, the Authority disregards its responsibility to provide
systemic remedies for unfair labor practices. By so doing,
Amicus contends, the Authority impermissibly frustrates the
congressional intent of the Civil Service Reform Act. See
Brief for Amicus at 17-31 (contrasting the Authority's broad
remedial powers to order systemic relief, such as ordering an
offending agency to cease and desist its unfair labor practices
and posting public notices to that effect, with the Board's
more limited remedial powers). In addition, Amicus argues
that the Authority's interpretation of section 7116(d) "pro-
vides agencies with an incentive to fire employees in order to
avoid unfair labor practice charges." Id. at 32-34.
As Amicus contends, the FLRA's broad remedial powers
are a central feature of the Civil Service Reform Act. To the
extent that 7116(d)'s jurisdictional bar lessens the FLRA's
role in cases where an individual raises the same issues in
both an unfair labor practice charge and a MSPB appeal,
however, the Authority's interpretation of section 7116(d)
remains consistent with the Supreme Court's general under-
standing that Congress, in enacting the Civil Service Reform
Act, sought to "balance the legitimate interests of ... federal
employees with the needs of sound and efficient administra-
tion" within an "integrated scheme of administrative and
judicial review" replacing the complicated "patchwork" sys-
tem that preceded the Civil Service Reform Act. See Fausto,
484 U.S. at 445. Although Fausto did not focus on the
Authority's jurisdiction to hear unfair labor practice com-
plaints in light of section 7116(d), the Court recognized in
Fausto that "the primacy of the MSPB for administrative
resolution of disputes over adverse personnel action," with
judicial review by the Federal Circuit, is an important "struc-
tural element" evident in the framework of the Act. Id. at
449 (citations omitted). It is likely that Congress' effort to
balance competing concerns in the course of its comprehen-
sive overhaul of the civil service system entailed various
trade-offs. The Authority's interpretation of how section
7116(d) strikes the balance between the FLRA's jurisdiction
to provide systemic remedies to vindicate the public interest
in preventing unfair labor practices and the MSPB's exclusive
jurisdiction over appeals of adverse actions is neither unrea-
sonable nor contrary to the purpose of the Act as articulated
by the Supreme Court in Fausto.
Wildberger also contends that a number of due process
errors on the part of the MSPB support his claim that the
FLRA should assert jurisdiction over his unfair labor practice
complaints. However, the proper course for remedying such
alleged errors is to seek review of the MSPB decision by the
Federal Circuit. Such errors on the part of the MSPB would
not render 7116(d)'s jurisdictional bar inapplicable or other-
wise provide a basis for collateral review of the MSPB
decision by the FLRA or this court.
C. Whether Section 7116(d) Bars the Authority from Exer-
cising Jurisdiction over Wildberger's Unfair Labor
Practice Charges
The record indicates that Wildberger raised all of the
issues that underscored his consolidated unfair labor practice
charges in his appeal before the MSPB. However, in a
prehearing conference, the MSPB-ALJ stated that she de-
clined jurisdiction over Wildberger's allegations of unfair
labor practices because unfair labor practice charges are
outside the Board's jurisdiction. Conference Summary, J.A.
90. The Board had instructed the MSPB-ALJ to allow
Wildberger "an opportunity to present any and all nonfrivo-
lous affirmative defenses." Wildberger v. SBA, 65 M.S.P.R.
673, 678 (1994). In a subsequent decision, the MSPB-ALJ
did, in fact, consider Wildberger's affirmative defenses, in-
cluding his claim that the proposing official, James Charney,
was motivated by personal animus, see J.A. 580-82, and his
claim that the removal action was taken in retaliation for
protected union activities. J.A. 587-90. The MSPB-ALJ
ultimately decided that the SBA had good cause to terminate
Wildberger's employment and rejected Wildberger's affirma-
tive defenses, and thus dismissed Wildberger's appeal on the
merits. See J.A. 558-95. The Board affirmed this decision.
Wildberger v. SBA, 69 M.S.P.R. 667 (1996) (affirming relevant
parts of MSPB-ALJ's decision).
In light of the sequence of events before the MSPB, it
appears that the MSPB-ALJ's statement in the prehearing
conference was meant to indicate that the ALJ would not
exercise jurisdiction over Wildberger's allegations of unfair
labor practices per se, even though she was required to
address the issues underlying Wildberger's unfair labor prac-
tice charges to the extent that the same issues underscored
his affirmative defenses. Accordingly, section 7116(d) would
only bar the Authority's jurisdiction over Wildberger's unfair
labor practice charges if the same issues underlying these
chargesCi.e., the same factual predicates and legal theoriesC
were considered by the MSPB as affirmative defenses.
1. The Proposed Removal Complaint
The SBA's final letter of removal terminating Wildberger's
employment essentially reiterated the same charges and spec-
ifications set forth in its letter proposing to remove him.
Compare Final Removal Letter, J.A. 494-519 with Proposed
Removal Letter, J.A. 298-325. Thus, the factual predicate
underlying Wildberger's proposed removal complaint and his
MSPB appeal are the same. See Local 1411, 960 F.2d at 178(holding that the distinction between proposed and actual
agency action is a distinction without a difference which, if
credited for the purposes of applying s 7116(d), "would drain
s 7116(d) of much of its utility").
The proposed removal complaint alleges that the SBA
committed an unfair labor practice in violation of 5 U.S.C.
s 7116(a)(1) (prohibiting federal employers from interfering
with, restraining, or coercing any employee in the exercise of
any right under chapter 71 of Title 5) by referencing Wildber-
ger's protected activity as a union organizer. In addressing
Wildberger's affirmative defense that his employment was
terminated in retaliation for protected union activity in viola-
tion of 5 U.S.C. s 2302(b)(9), the MSPB-ALJ applied the
analysis articulated by the Board in Ireland, 34 M.S.P.R. at
618-19. Under the Ireland analysis, to establish a claim of
reprisal for union activities in violation of section 2302(b)(9),
an employee must demonstrate that he engaged in an activity
protected by statute, that he subsequently was subject to an
adverse action, that the proposing and deciding officials knew
that the employee was engaged in the protected activity, and
that there was a causal connection between the protected
activity and the adverse action. Id. The MSPB-ALJ found
that, contrary to Wildberger's assertion, he did not possess a
statutorily-protected right to utilize official time or other SBA
resources for his union organizing activity. J.A. 587-88.
Moreover, the MSPB-ALJ determined that Wildberger had
failed to show a sufficient causal connection between any
statutorily-protected activities in which he was engaged and
the termination decision. J.A. 589-90. Thus, the same legal
theoryCthat the termination was in retaliation for Wildber-
ger's protected activitiesCwas argued to both the FLRA and
the MSPB, and this theory was rejected by the MSPB in the
context of considering Wildberger's affirmative defenses. Ac-
cordingly, the Authority's determination that it was barred by
the first sentence of section 7116(d) from exercising jurisdic-
tion over Wildberger's proposed removal complaint was not
arbitrary and capricious.
2. The Threat Complaint
The threat complaint alleges that Wildberger's supervisor,
James Charney, committed an unfair labor practice in viola-
tion of 5 U.S.C. s 7116(a)(1) by threatening to deny Wildber-
ger's training requests and to fire Wildberger if "the conflict
created by the labor organization Wildberger had formed" did
not stop. Complaint and Notice of Hearing (Case No. 20821),
J.A. 295. These same issues were considered by the MSPB
in the context of Wildberger's affirmative defense claiming
that the proposing official (Charney) was motivated by per-
sonal animus. See J.A. 580-82.
The record indicates that Wildberger alleged as an affirma-
tive defense that Charney was motivated by personal animus
because Wildberger served him with the threat complaint one
work day before Charney issued the letter proposing Wild-
berger's removal. See J.A. 580. The MSPB-ALJ reasoned
that this allegation "may be analyzed in two ways: as a claim
that Mr. Charney's impartiality had been compromised and as
a claim that Mr. Charney retaliated against [Wildberger] for
filing the FLRA complaint." J.A. 581. The MSPB-ALJ
rejected the suggestion that Charney proposed Wildberger's
removal in retaliation for Wildberger's filing of the threat
complaint. J.A. 582. Furthermore, the MSPB-ALJ deter-
mined that "to prevail on the allegation of personal animus
the appellant would have to show actual bias or the existence
of an intolerably high risk of unfairness." J.A. 581 (citations
omitted). Turning to Wildberger's assertion that Charney
had illegally threatened him as evidence of Charney's alleged
bias, the MSPB-ALJ considered the conflicting testimony of
Charney and Wildberger and concluded that Wildberger had
not shown, by credible evidence, that Charney had ever
threatened him. J.A. 581. Thus, the MSPB addressed the
central issue underscoring Wildberger's threat complaint in
the context of considering his affirmative defenses. Accord-
ingly, the Authority's determination that it was barred by the
first sentence of section 7116(d) from exercising jurisdiction
over Wildberger's threat complaint was not arbitrary and
capricious.
3. The Disparate Treatment Complaint
The disparate treatment complaint alleges that the SBA
committed an unfair labor practice in violation of 5 U.S.C.
s 7116(a)(1) by inundating Wildberger with memoranda, by
prohibiting him from using various agency resources (such as
e-mail) for personal reasons, and by imposing a number of
other restrictions on him. Complaint and Notice of Hearing
(Case No. 21060), J.A. 331-32. In addition, the complaint
alleged that the SBA committed an unfair labor practice in
violation of 5 U.S.C. s 7116(a)(2) (prohibiting federal employ-
ees from discouraging membership in any labor organization
through discrimination in working conditions) by imposing the
itemized restrictions on Wildberger while not applying the
same restrictions to other bargaining unit employees. Id.
When this complaint was initially considered by the FLRA,
the General Counsel for the FLRA emphasized the discrimi-
natory nature of the restrictions imposed upon Wildberger,
see J.A. 79-80, and the FLRA-ALJ decided the claim against
Wildberger on the merits, not on jurisdictional grounds. See
J.A. 120-27. The Authority, however, rejected the ALJ's
determination and dismissed this claim under section 7116(d).
Wildberger [FLRA], 1995 WL 648828, at *8-9.
Although the MSPB-ALJ's determination that Wildber-
ger's use of agency resources for union organizing purposes
was not statutorily-protected activity might be construed as a
preclusive determination of Wildberger's claim that SBA or-
ders prohibiting such use violated section 7116(a)(1), the
MSPB never addressed Wildberger's allegations of discrimi-
natory treatment in violation of section 7116(a)(2). Moreover,
the record does not clearly indicate that these issues neces-
sarily came into play in the affirmative defenses considered
by the MSPB. Thus, although to some extent the factual
predicate underlying Wildberger's disparate treatment com-
plaint was addressed by the MSPB, the MSPB did not
considerCand indeed declined jurisdiction overCone of the
legal theories raised in this complaint. Accordingly, this
complaint is remanded to the Authority for a decision on the
merits.
4.Wildberger's Complaints Focus on Individual, not Insti-
tutional, Interests
Significantly, the FLRA maintained that it will assert
jurisdiction over unfair labor practice charges which affect
union organizing on a larger scale, as opposed to the activities
of a single individual who brings unfair labor practice
charges, subsequently suffers an adverse action, and raises
the same issues underlying the unfair labor practice charges
in appealing the adverse action to the MSPB. Wildberger
[FLRA], 1995 WL 648828, at *7. Whether or not a particular
unfair labor practice charge fits within this exception in any
given case is for the Authority to determine in the first
instance. Although Wildberger suggests that he has "institu-
tional interests as National President of SOLIDARITY
U.S.A.," see, e.g., Brief for Petitioner at 27, the unfair labor
practice complaints were filed in Wildberger's name, not
Solidarity's, and assert only Wildberger's individual rights to
" 'form, join, or assist any labor organization ... freely and
without fear of penalty or reprisal ...,' " not Solidarity's
institutional interests per se. Id. (quoting 5 U.S.C. s 7102).
Cf. Local 1411, 960 F.2d at 179 (" '[Section 7116(d)] does not
preclude a union in its institutional capacity as an aggrieved
party from filing an unfair labor practice charge to enforce its
own independent rights merely because an employee has
initiated an appeal or grievance ... based on the same factual
situation to enforce his individual rights.' ") (quoting Corneli-
us v. Nutt, 472 U.S. 648, 665 n.20 (1985) (alterations in
original)). Thus, the Authority's determination that Wildber-
ger's unfair labor practice complaints do not come within its
stated exception for charges filed by labor organizations
asserting their own institutional interests was not arbitrary
and capricious.
D. Matters Not Reached
As noted above, our holding in this case does not purport to
resolve how section 7116(d) might be applied in other situa-
tions which do not closely comport with the facts of this case.
In particular, this case should not be interpreted to mean that
all unfair labor practice charges involving an employee who
subsequently appeals an adverse action to the MSPB should
necessarily be subsumed into the MSPB proceeding. For
example, suppose an employee who allegedly suffered harass-
ment from his employer for engaging in union organizing
activities and filed unfair labor practice charges alleging such
harassment was subsequently removed for alleged theft. If,
in appealing the termination to the MSPB, the employee
argues only that the employer's claim of theft cannot be
sustained, not that the action was taken in retaliation for his
union organizing activities, it is not clear whether section
7116(d) should apply. Where the employee did not raise the
issues underlying his unfair labor practice charges before the
MSPB, the question of whether his unfair labor practice
charges could be or should be subsumed into his MSPB
appeal, or whether instead they are sufficiently separate to
preserve the FLRA's jurisdiction over them notwithstanding
the MSPB appeal, are questions that must be addressed by
the FLRA in future cases.
We also want to make it clear that our holding here is not
intended as either an endorsement or a rejection of the
Fourth Circuit's holding in Department of Commerce, Bureau
of the Census v. FLRA, 976 F.2d 882 (4th Cir. 1992) ("Com-
merce"). The Authority's judgment in this case appears to
rest on Commerce; this is hardly surprising, given that the
decision in Commerce is broad enough to support the result
reached by the FLRA here. But, on this record, we are not
prepared to venture beyond the facts at hand.
The Commerce court held that, under section 7116(d), once
an employee had commenced a MSPB appeal, he was con-
strained to bring all his administrative claims in the MSPB
proceeding and the FLRA was barred from adjudicating any
unfair labor practice charges which are not "sufficiently dis-
crete from his challenge to his ultimate removal." Id. at 888.
Both the facts and the holding in Commerce are distinct from
the case before us. The issues underscoring the unfair labor
practice charges in Commerce were adjudicated by the FLRA
after a related MSPB appeal was filed but before the MSPB
had adjudicated the appeal. See id. at 886. Therefore, the
Commerce court could not frame its opinion in terms of issues
actually presented to and considered by the MSPB, but
instead reached the question of whether the issues underlying
the unfair labor practice charges were necessarily subsumed
into the pending MSPB proceeding. See id. at 890 (noting
that, while the MSPB is barred from adjudicating ULP
charges per se, the issues underlying the employee's ULP
charge "may be raised in an MSPB procedure" as affirmative
defenses) (emphasis added); cf. id. ("Only where [ ] initial
disciplinary actions ripen into full-blown 'adverse employment
actions' will sole jurisdiction vest in the MSPB under the first
sentence of s 7116(d)."). The fact that the Fourth Circuit
reached a question that this court reserves does not make
this court's decision inconsistent with that in Commerce; the
Fourth Circuit had a different case before it.
III. Conclusion
For the reasons explained above, we deny the petition for
review challenging the Authority's dismissal of Appellant's
proposed removal complaint and threat complaint pursuant to
the jurisdictional bar imposed by the first sentence of section
7116(d). However, we find that the Authority's jurisdiction
over Appellant's disparate treatment complaint is not barred
by section 7116(d). Accordingly, the disparate treatment
complaint is hereby remanded for consideration on the merits
by the Authority.
So ordered.