United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 9, 2004 Decided January 28, 2005
No. 04-1129
ASSOCIATION OF ADMINISTRATIVE LAW JUDGES, ET AL.,
PETITIONERS
v.
FEDERAL LABOR RELATIONS AUTHORITY,
RESPONDENT
On Petition for Review of a Decision and Order of the
Federal Labor Relations Authority
Sally M. Tedrow argued the cause for petitioners. With her
on the briefs was James B. Coppess.
Mark D. Roth, Judith D. Galat, Gregory O'Duden, Barbara
A. Atkin, and Timothy B. Hannapel were on the brief of amici
curiae American Federation of Government Employees, et al.,
in support of petitioner.
James F. Blandford, Attorney, Federal Labor Relations
Authority, argued the cause for respondent. With him on the
brief were David M. Smith, Solicitor, and William R. Tobey,
Deputy Solicitor.
Before: GINSBURG, Chief Judge, and GARLAND, Circuit
2
Judge, and WILLIAMS, Senior Circuit Judge.
Opinion for the Court filed by Chief Judge GINSBURG.
GINSBURG, Chief Judge: The Association of Administrative
Law Judges (the Union) petitions for review of a decision by the
Federal Labor Relations Authority holding that an employing
agency of the United States Government need not bargain over
a de minimis change in “conditions of employment,” 5 U.S.C.
§ 7102(2). The Union argues this newly announced exception
to the duty to bargain is both contrary to the terms of the Federal
Service Labor-Management Relations Statute, 5 U.S.C. § 7101
et seq., and unreasonable in light of the Congress’s purpose in
enacting it.
The issue, which we resolve with deference to the Authority
because it is charged with administration of the Statute, is
whether “the Congress has taken a position so rigid that it will
not admit of a de minimis exemption.” Envtl. Def. Fund, Inc. v.
EPA, 82 F.3d 451, 466 (D.C. Cir. 1996). In this regard, as the
Authority points out, the Congress has specifically directed that
“[t]he provisions of [the Statute] should be interpreted in a
manner consistent with the requirement of an effective and
efficient Government.” 5 U.S.C. § 7101. In light of this
pragmatic direction, we hold the Authority’s interpretation of
the Statute not to require bargaining over trivia is neither
contrary to the text nor unreasonable in light of its purpose.
Because the Authority here applied the de minimis exception to
a truly insignificant change in the ALJs’ conditions of
employment, we deny the Union’s petition for review.
I. Background
In October 1999, each of the six ALJs employed in the
Social Security Administration’s Office of Hearings and
3
Appeals in Charleston, South Carolina was assigned a reserved
parking space. One year later the agency, refusing the Union’s
request to bargain over the matter, unilaterally reassigned four
of those spaces, leaving only two reserved spaces for the six
ALJs to share. All six ALJs were still allowed free, unreserved
parking in the same garage, and space was always available.
The Union filed an unfair labor practice charge with the
Authority, and the General Counsel issued a complaint alleging
the SSA had violated the Statute by refusing to bargain over a
substantively negotiable change in a condition of employment.
5 U.S.C. § 7116(a)(1) & (5). After a hearing, an ALJ for the
Authority upheld the complaint and ordered the agency to
reinstate the ALJs’ parking privileges.
In so doing, the ALJ followed longstanding practice with
respect to a change in working conditions that was
“substantively negotiable” -- meaning not within one of the
“management rights” enumerated in § 7106: “[T]he extent of
the impact of the change on unit employees has not been a factor
or element in the analysis of whether an agency is obligated to
bargain.” On the other hand, an agency was not (and is not)
obligated to bargain over the “impact and implementation” of a
change it could make as a matter of management right unless the
change “has more than a de minimis effect on the unit
employees’ conditions of employment.” Here the ALJ
volunteered that “if [SSA] were only obligated to bargain [over]
impact and implementation, there might be a grave doubt that
the impact was more than de minimis.”
The SSA filed exceptions to the ALJ’s decision, arguing
“the Authority should apply the de minimis doctrine that has
been used for impact and implementation bargaining to changes
that are substantively negotiable.” Recognizing that “the issue
raised by the Agency ... [was] likely to be of concern to the
4
federal sector labor-management relations community in
general,” the Authority published in the Federal Register a call
for amicus briefs addressed to the following questions:
What standard should the Authority apply in determining an
agency’s statutory obligation to bargain when an agency
institutes changes in conditions of employment that are
substantively negotiable? Why? Should the Authority
eliminate the distinction between substantively negotiable
changes, where the de minimis standard has not been
applied, and changes that are not substantively negotiable,
where the de minimis standard has been applied? Why?
Briefs were filed by three unions representing employees of the
Government and by the Departments of Defense and of Labor.
In the resulting order, now under review, the Authority
reversed the ALJ and repudiated its prior practice, noting that it
had never “explained why the extent of the impact of the change
is not relevant in determining whether the agency has an
obligation to bargain.” Soc. Sec. Admin., Office of Hearings &
Appeals, Charleston, S.C., 59 F.L.R.A. No. 118, 2004 WL
349896, Slip at 19 (Feb. 19, 2004) (hereinafter Charleston
OHA). This being the “first instance in which a party ha[d]
explicitly requested the Authority ... to apply the same standard
to both situations,” the Authority could find no reason to limit
its recognition of the de minimis exception to “impact and
implementation” bargaining, as to which it had long ago
explained:
[T]he Authority must take care that its adjudicative
processes not be unnecessarily burdened with cases that do
not serve to bring meaning and purpose to the Federal
labor-management relations program. While we seek to
ensure that the rights of agencies, unions, and employees
5
under the Statute are protected in situations involving
changes in conditions of employment, we must also seek to
discharge our responsibilities in a fashion that promotes
meaningful bilateral negotiations. Interpreting the Statute
to require bargaining over every single management action,
no matter how slight the impact of that action, does not
serve those aims.
Dep’t of Health and Human Services, SSA, 24 F.L.R.A. 403, 406
(1986).
Therefore, “in the absence of any explicit indication in the
Statute,” Charleston OHA, Slip at 15, and in light of its duty to
interpret the Statute “in a manner consistent with the
requirement of an effective and efficient Government,” 5 U.S.C.
§ 7101(b), the Authority concluded the Statute does not require
an agency to bargain over a de minimis change in conditions of
employment. In so holding, the Authority noted that a similar
standard prevailed both under Executive Order 11491, which
had governed labor-management relations in the federal
Government prior to enactment of the Statute in 1978, see Dep’t
of Defense, Air Nat’l Guard, Tex. Air Nat’l Guard, Camp
Mabry, Austin, Tex., 6 A/SLMR 591 No. 738 (1976) (obligation
to bargain “encompasses those matters which materially affect,
and have a substantial impact on, personnel policies, practices,
and general working conditions”), and under the National Labor
Relations Act, 29 U.S.C. § 151 et seq., which governs labor-
management relations in the private sector, see Peerless Food
Prods., Inc., 236 N.L.R.B. 161 (1978) (obligation to bargain
where unilateral change “amount[s] to a material, substantial,
and significant one”).
Applying the de minimis standard to this case, the Authority
concluded the SSA’s reduction by four in the number of
reserved parking spaces assigned to the six ALJs was indeed a
6
de mimimis change in the conditions of their employment.
Accordingly, it dismissed the complaint and the Union
petitioned for review.*
*
The Union argued before the Authority that the case was
moot because (1) the Charleston OHA relocated to a “new site [that]
has unreserved parking available for all employees and, unlike the
[previous location], does not have any reserved parking spaces at all”;
and (2) “the bargaining impasse between the parties on the issue of
parking was resolved by a decision and order of the Federal Service
Impasses Panel (FSIP) issued during the pendency of this case.”
Charleston OHA, Slip at 7. The Union no longer argues mootness, but
the court has considered the issue nonetheless, as it is obligated to do
so sua sponte. See Iron Arrow Honor Soc’y v. Heckler, 464 U.S. 67,
70 (1983); Mine Reclamation Corp. v. FERC, 30 F.3d 1519, 1522
(D.C. Cir. 1994).
We hold the case is not moot. Although retrospective relief --
reinstatement of the ALJs’ reserved parking privileges -- may no
longer be available, an order of the Authority “imposes a continuing
obligation; and the [Authority] is entitled to have the resumption of
the unfair labor practice barred by an enforcement decree.” NLRB v.
Raytheon Co., 398 U.S. 25, 27 (1970). Further, as we explained in
American Federation of Government Employees v. FLRA, 777 F.2d
751, 753 n.13 (D.C. Cir. 1985),
In addition to issuing a cease and desist order upon a finding
of an unfair labor practice, the FLRA is authorized to order
“such other action as will carry out the purpose” of the
Federal Labor-Management Relations Act. 5 U.S.C. §
7118(a)(7)(D); 5 C.F.R. § 2423.29. This “other action” may
include the posting of a notice indicating that an agency has
been found to have committed an unfair labor practice and
that it has been ordered to cease committing such practices in
7
II. Analysis
We review the Authority’s interpretation of the Statute
under the two-step framework of Chevron, U.S.A., Inc. v.
Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).
We first consider whether the “Congress has spoken directly” to
the question whether an agency must bargain over changes in
conditions of employment with a merely de minimis effect upon
unit employees. Id. at 842-43 & n.9 (1984). If the court,
“employing traditional tools of statutory construction, ascertains
that Congress had an intention on the precise question at issue,
that intention is the law and must be given effect.” Id. at 843
n.9.
The Statute grants “[e]ach employee ... the right ... to
engage in collective bargaining with respect to conditions of
employment,” 5 U.S.C. § 7102(2), where “‘conditions of
employment’ means personnel policies, practices, and matters,
whether established by rule, regulation, or otherwise, affecting
working conditions.” 5 U.S.C. § 7103(a)(14). Section 7106
enumerates several “management rights” that function as
exceptions to the duty to bargain. Here the parties agree that
reserved parking was a “condition of employment” for the ALJs
and that the SSA’s reduction in the number of spaces assigned
to them was not a matter of “management right.”
At Chevron step one the parties each advance a “traditional
tool of statutory construction.” The Union argues that, because
the Statute enumerates several exceptions to the duty to bargain
but nowhere mentions a de minimis exception, the court should
the future .... The existence of this additional remedy ...
establishes that a live controversy still exists between the
parties and that this case is therefore not moot.
8
infer that the Congress did not intend that there be a de minimis
exception; expressio unius est exclusio alterius. The Authority,
for its part, argues that a de minimis exception, not having been
expressly foreclosed, is implicit in the Statute as in all rules of
law; de minimis non curat lex.
The Union’s argument that the enumeration of management
rights in the Statute precludes a de minimis exception to the duty
to bargain fails on two counts. First, although it is true, as the
Union says, the Authority has no inherent power to “confer[] on
federal agencies a new management right that Congress ... did
not contemplate,” Am. Fed’n of Gov’t Employees v. FLRA, 853
F.2d 986, 992 (1988), that is not what it has done. A de minimis
change is not a proper subject of bargaining not because
management has a “right” to make it but because it has no
appreciable effect upon working conditions. Second, we have
repeatedly recognized that a de minimis exception is generally
not express; rather, it is “inherent in most statutory schemes,” by
implication. As we explained in Environmental Defense Fund,
Inc. v. EPA:
Categorical exemptions may ... be permissible “as an
exercise of agency power, inherent in most statutory
schemes, to overlook circumstances that in context may
fairly be considered de minimis” .... The ability to create a
de minimis exemption “is not an ability to depart from the
statute, but rather a tool to be used in implementing the
legislative design.”
....
As long as the Congress has not been “extraordinarily rigid”
in drafting the statute ... “there is likely a basis for an
implication of de minimis authority to provide [an]
exemption when the burdens of regulation yield a gain of
9
trivial or no value.”
82 F.3d 451, 466 (D.C. Cir. 1996), quoting Alabama Power Co.
v. Costle, 636 F.2d 323, 360 (D.C. Cir. 1979). Unless it has
been “extraordinarily rigid” in expressing itself to the contrary,
that is, the Congress is always presumed to intend that “pointless
expenditures of effort” be avoided. Id. Therefore, the Union’s
argument, based as it is upon the venerable and useful
implication captured by the expressio unius maxim, does not
justify the conclusion that the Congress has spoken directly to
the question here at issue.
We proceed accordingly to consider under Chevron step
two, 467 U.S. at 843, whether the Authority’s inference that
there is a de minimis exception to the duty to bargain is a
permissible construction of the Statute. The Union argues the de
minimis exception is contrary to the Congress’s having found:
[E]xperience in both private and public employment
indicates that the statutory protection of the right of
employees to ... bargain collectively ... safeguards the
public interest ... contributes to the effective conduct of
public business, and ... facilitates and encourages the
amicable settlement of disputes.
5 U.S.C. § 7101(a)(1). In light of this finding, the Union argues,
“the erection of barriers to collective bargaining thwarts
legislative intent.”
Neither the finding in § 7101(a)(1), nor any other provision
of the Statute, however, gives any indication “the Congress has
taken a position so [extraordinarily] rigid that it will not admit
of a de minimis exemption.” Envtl. Def. Fund, Inc., 82 F.3d at
466. On the contrary, the Congress took the unusual step of
prescribing a practical and flexible rule of construction -- to wit,
10
the Statute “should be interpreted in a manner consistent with
the requirement of an effective and efficient Government,” 5
U.S.C. § 7101(b) -- that clearly invites the Authority to exercise
its judgment, as it has done in the order under review.
Effectiveness and efficiency in government can hardly be
thought to require bargaining over truly insignificant conditions
of employment. As the Authority reasonably concluded, “No
interests are served by requiring bargaining over every single
management action, no matter how slight the impact.”
Charleston OHA, Slip at 21.
The Union’s attempt to distinguish “impact bargaining”
under § 7106(b)(3) from bargaining over substantively
negotiable conditions of employment is unpersuasive.
According to the Union, “the concept of adverse impact ... is
grounded squarely in the statutory language ... but has no
rational bearing on substantive bargaining cases.” The Union
reasons as follows:
The existence of some level of impact on bargaining unit
employees is ... a sine qua non of a union’s right to engage
in impact bargaining. In contrast, in cases involving
substantively negotiable matters, the Statute confers a right
to engage in collective bargaining without reference to the
existence of impact.
Section § 7106(b)(3), however, does not contain the word
“impact”; it requires bargaining over “appropriate arrangements
for employees adversely affected by the exercise” of any
management right. More important, § 7102(2), which governs
so-called substantive bargaining, invokes a cognate by
referencing “conditions of employment,” defined in 5 U.S.C. §
7103(a)(14) as “personnel polices, practices, and matters ...
affecting working conditions.” The Congress thus having
predicated the duty to bargain under § 7106(b)(3) and under §
11
7102(2) upon the same notion, namely an effect upon
employees, we cannot deem unreasonable, as the Union
suggests, the Authority’s conclusion that “application of the
same standard is warranted in both circumstances.” Charleston
OHA, Slip at 21. Indeed, the Union’s argument that “some level
of impact” -- that is, “effect” -- “is a sine qua non of a union’s
right to engage in ... bargaining” provides a persuasive defense
of the Authority’s uniform de minimis exception, although the
Authority does not make that point.
The Union’s invocation of the legislative history of the
Statute is no more persuasive than its argument from the text.
The legislative history quoted by the Union indicates the
Congress intended “that the listed management rights ... be
narrowly construed exceptions to the general obligation to
bargain ... and that section 7106 be read to favor collective
bargaining whenever there is a doubt as to the negotiability of a
subject or proposal.” 124 Cong. Rec. 29,198 (1978) (statement
of Rep. Ford). As the Authority points out, this case does not
involve the interpretation of the scope of § 7106; the parties
agree that the SSA was not exercising a management right when
it reduced the number of parking spaces reserved for ALJs.
Finally, we think the Union’s predictions about the practical
consequences of the Authority’s decision are unduly dire. First,
the Union warns the de minimis exception will “upset[] the
balance at the bargaining table” and will “seriously damage[] the
union’s collective bargaining efforts.” This concern is
misplaced in view of the narrow limits of the de minimis
doctrine, for the Authority will bear the burden before this court
of showing that any particular application of the de minimis
exception is reasonable. See Alabama Power, 636 F.2d at 360
(“Determination of when matters are truly de minimis naturally
will turn on the assessment of particular circumstances, and the
agency will bear the burden of making the required showing”).
12
Second, the Union predicts the Authority’s decision will
“spawn significant confusion and extensive litigation.”
Although there is little indication the de minimis exception for
“impact bargaining” has had such an untoward effect, we trust
that if administration of the de minimis exception for substantive
bargaining becomes more burdensome than would be the
alternative of bargaining over trivia, then the Authority will
conclude the interests of “effective and efficient Government”
are better served by dispensing with the exception. It is, of
course, for the Authority, rather than for this court, to make that
judgment.
***
We turn now to whether the management action at issue in
this case, “in context may fairly be considered de minimis.”
Alabama Power, 636 F.2d at 360. The record establishes, and
the Union does not dispute, that when the SSA reassigned four
of the six parking spaces previously reserved for ALJs, parking
for the ALJs was still free, in the same garage, and always
available. Indeed, the Union, standing upon the principle that it
and the employees it represents should be allowed to decide
what is worth bargaining over, does not claim the change had
any material effect upon the ALJs. Accordingly, we agree with
the Authority that the difference was de minimis.
III. Conclusion
For the foregoing reasons, the petition for review is
Denied.