Montana Air Chapter No. 29, Association of Civilian Technicians, Inc. v. Federal Labor Relations Authority

Montana Air Chapter No. 29, Association of Civilian Technicians, Inc. (the union), appeals from the district court’s grant of summary judgment in favor of the Federal Labor Relations Authority (FLRA). The union had filed suit challenging the decision of the FLRA’s General Counsel not to issue an unfair labor practice complaint. The union’s unfair labor practice charge arose in connection with the National Guard Bureau’s refusal to approve Article 23 of a collective bargaining agreement, which allowed civilian technicians employed by the National Guard to wear approved civilian attire rather than military dress when performing their civilian duties. We agree with the district court that decisions by the General Counsel not to issue an unfair labor practice complaint are presumptively unreviewable. The presumption, however, may be overcome if the refusal is based solely upon the erroneous belief that the agency lacks jurisdiction, or upon adoption of a general policy so extreme as to amount to an abdication of the agency’s statutory responsibilities. We find that the General Counsel promulgated statutory and regulatory interpretations in the course of his decision which strongly…