## Facts

- The Federal Service Labor-Management Relations Statute (FSLMRS) creates procedures for (a) negotiability determinations and (b) unfair labor practice (ULP) adjudication involving refusals to bargain.
- In 1980, the Federal Labor Relations Authority (FLRA) issued regulations (5 C.F.R. §§ 2423.5 and 2424.5) limiting ULP remedies when an agency, in good faith, refused to bargain on legal grounds (e.g., management rights or conflict with law/regulation), unless the refusal was accompanied by an actual or threatened unilateral change in conditions of employment.
- In 1985, the National Labor Relations Board Union and a local affiliate petitioned the FLRA to amend or rescind the regulations as inconsistent with 5 U.S.C. §§ 7117(c) and 7118.
- The FLRA denied the rulemaking petition.
- The Union sought judicial review in the D.C. Circuit, challenging both the denial of the petition and the validity of the underlying regulations.

## Issues

1. Whether the Union’s challenge to regulations promulgated more than 60 days earlier was barred by the limitations period in 5 U.S.C. § 7123(a).
2. Whether 5 C.F.R. §§ 2423.5 and 2424.5 unlawfully restrict ULP remedies in a manner inconsistent with 5 U.S.C. §§ 7117(c) and 7118.

## Decision

- The court held the Union’s petition was not time-barred because the Union proceeded by petitioning for amendment/rescission and asserting the regulations exceeded the FLRA’s statutory authority.
- The court held the challenged regulations were a permissible construction of the FSLMRS and did not conflict with §§ 7117(c) and 7118.
- The court denied the petition for review and upheld the FLRA’s denial of the rulemaking petition.

## Legal Principles

- After the judicial-review limitations period for agency rules expires, a party may still obtain review by petitioning the agency to amend or rescind the rule and then seeking review of the denial, particularly where the claim is that the rule exceeds statutory authority.
- Under the FSLMRS, the FLRA may allocate disputes between negotiability proceedings (§ 7117(c)) and ULP adjudication (§ 7118) where the statutory text and history do not compel ULP remedies for every erroneous refusal to bargain.
- FLRA regulations may channel good-faith negotiability disputes into the negotiability process and limit ULP remedies absent an actual or threatened unilateral change in conditions of employment, so long as the scheme remains within the statute’s permissible interpretation.
- Where the statute is ambiguous and the agency’s construction is reasonable in light of text, structure, legislative materials, and prior administrative practice, a reviewing court will sustain the agency’s interpretation.

## Conclusion

The D.C. Circuit permitted a post-promulgation challenge brought through a rulemaking petition alleging lack of statutory authority, and it upheld FLRA regulations that restrict ULP remedies for good-faith refusals to bargain on negotiability grounds unless coupled with unilateral changes in employment conditions.


Nat'l Labor Relations Bd. Union v. Fed. Labor Relations Auth., 834 F.2d 191 (D.C. Cir. 1987)