The opinion of the court was delivered by: CORCORAN
Before the Court is defendants' motion to dismiss or, in the alternative, for summary judgment.
The defendant argues that the Court lacks jurisdiction over this action which alleges a breach of a collective bargaining agreement between a union and an agency of the U. S. Government.
Plaintiffs contend that an adequate jurisdictional basis is found in 28 U.S.C. § 1346(a)(2), which authorizes Federal District Courts to hear disputes involving contracts to which the Government is a party.
For the reasons stated below, we agree with the defendants.
This is an action against the United States Soldiers' and Airmen's Home (Home) initiated by a former employee, Mary Yates, who was discharged and a present employee, James Brunner, who was temporarily suspended from employment. The complaint alleges that the defendants breached the collective bargaining agreement between the Home and the plaintiffs' labor union by refusing to accept grievances filed by plaintiff Yates concerning her discharge and plaintiff Brunner concerning his suspension. The plaintiffs seek monetary relief and an order requiring the defendants to process plaintiffs' grievances through the grievance/arbitration mechanism provided in the labor agreement.
Plaintiff Yates was notified on November 19, 1980, that she was to be discharged from her position at the Home, effective November 24, 1980, for soliciting and accepting funds from a Home member. She submitted a request for a grievance hearing concerning her discharge on December 4, 1980. Her request was rejected by the defendant as untimely.
Plaintiff Brunner was notified on February 13, 1981, that he would be suspended for 10 days, effective February 23, 1981, for misconduct and insubordination. Brunner did not immediately submit a grievance over his suspension. However, he did request an extension of time within which to file a grievance on February 26, 1981. As with Yates' request, the defendant rejected Brunner's request as untimely.
Plaintiffs contend that the defendants refusal to process their grievances is a violation of the collective bargaining agreement, and have requested the Court to award them the appropriate relief. Defendant, as noted, challenges the jurisdiction of the Court.
The authority of an agency of the U. S. Government to enter into a collective bargaining agreement with a labor organization derives from the Civil Service Reform Act of 1978 ("Act"), 5 U.S.C. § 7101 et seq.
The Act is a comprehensive scheme governing labor relations within the federal civil service. It was modeled, in part, after the National Labor Relations Act ("NLRA"), 29 U.S.C. § 151 et seq., which governs labor relations in the private sector. See : H.R.Rep.No. 95-1403, 95th Cong., 2d Sess. 41 (1978); S.Rep.No. 95-969, 95th Cong., 2d Sess. 106 (1978), reprinted in 1978 U.S.Code Cong & Ad.News 2723, 2828; Dept. of Defense, etc. v. FLRA, 659 F.2d 1140 (D.C.Cir.1981).
In addition to authorizing collective bargaining in the public sector, the Act establishes the Federal Labor Relations Authority ("FLRA"), 5 U.S.C. § 7104, the powers of which are analogous to those of the National Labor Relations Board ("NLRB"). 5 U.S.C. § 7105; U. S. v. Professional Air Traffic Controllers, 653 F.2d 1134, 1139 (7th Cir. 1981). The Act also establishes a code of unfair labor practices 5 U.S.C. § 7116; it empowers the FLRA to take action to prevent unfair labor practices, 5 U.S.C. § 7118; and it outlines certain grievance procedures which must be included in any collective bargaining agreement, 5 U.S.C. § 7121. An employee aggrieved by agency action has the option of either filing an unfair labor practice charge with the FLRA, or pursuing the matter through the grievance mechanism in the collective bargaining agreement. He may not, however, resort to both procedures. 5 U.S.C. § 7121(d). Among the mandatory grievance procedures, to be included in all labor agreements, are provisions requiring that issues of arbitrability be resolved by resort to the grievance mechanism, 5 U.S.C. § 7121(a)(1), and that all unresolved grievance be submitted to binding arbitration. 5 U.S.C. § 7121(b)(3)(C). Challenges to an arbitrator's award are to be resolved, in the first instance, by the FLRA, §§ 7105(a)(2)(H), with judicial review of the FLRA's decision in the Court of Appeals. 5 U.S.C. § 7123(a).
Noticeably lacking in this complex statutory scheme for the resolution of grievances is any mention of involvement by a Federal District Court. The defendants contend, and we agree, that the absence of a jurisdictional grant in the Act is a clear indication that Congress intended to bar ...