Department of Defense v. Federal Labor Relations Authority

GINSBURG, Circuit Judge,

dissenting in part:

I keep pace with the court two-thirds of the way, but break from the majority’s position on the consistency of the union’s proposals with the relevant Status of Forces Agreement (SOFA), 17 U.S.T. 1677, T.I.A.S. No. 6127 (July 9, 1966). I would not decide that important issue on the sparse record before us,1 but would return the question to the Federal Labor Relations Authority (FLRA or Authority) for a full airing. I would require the FLRA not only to “do whatever is necessary to inform itself of the union’s real position” with respect to vehicle registration, Majority opinion at 649, but also to reconsider, on a more complete record, whether SOFA and its implementing regulations permit collective bargaining on the subjects of registration and rationing.

The court, in my judgment, appropriately accepts the FLRA’s determinations that the union’s bargaining proposals involv.e “conditions of employment” and do not implicate the agency’s “internal security practices.” Issues of this sort are standard fare for the Authority. On both questions, our precedent calls for “great deference” to the FLRA’s interpretation of the law Congress has charged the Authority to administer, the Federal Service Labor-Management Relations Statute, 5 U.S.C. §§ 7101-7135 (Supp. IV 1980). See Department of Defense v. FLRA, 659 F.2d 1140, 1161 (D.C.Cir.1981), cert. denied sub nom. American Federation of Government Employees v. FLRA, 445 U.S. 945, 102 S.Ct. 1443, 71 L.Ed.2d 658 (1982).

But SOFA interpretation is not the Authority’s specialty. Concededly, the FLRA brings no expertise to bear, and is owed no deference, on questions concerning the scope of SOFA “law.” Indeed, the court acknowledges that the Army, not the Authority, is expert and ordinarily entitled to deference on matters concerning SOFA. Majority opinion at 650. Nonetheless, the majority concludes that the Army, in this instance, is “wrong,” id. at 650, therefore the Army’s view of what constitutes SOFA “law” cannot prevail.

The Federal Service Labor-Management Relations Statute, all agree, does not autho*202rize bargaining that would be “inconsistent with any Federal law.” 5 U.S.C. § 7117(a)(1). SOFA, it is not disputed, qualifies as “Federal law” comprehended by this provision. See Majority opinion at 648. According to the Army, SOFA “law” encompasses, in addition to the executive agreement itself, Army regulations tightly tied to SOFA provisions — regulations, shaped in consultation with representatives of the host nation, that comply with or implement specific SOFA provisions and advance the general policies of SOFA. The court reads SOFA “law” for the purpose at hand less generously. It is not enough, the majority reasons, that the regulations a union would bargain about constitute one way to implement SOFA’s express terms and serve the general policies of SOFA. Like the FLRA,2 the court apparently believes that a regulation does not count as SOFA “law” unless it is mandatory, specifically required by the executive agreement, the only way the Army could carry out the agreement. The court offers two reasons for so circumscribing SOFA “law.” Neither is fully persuasive.

First, the court notes the existence of a SOFA wherever the United States has a significant military presence, and of provisions in each SOFA resembling those in question here — provisions calling for United States-host nation cooperation in devising, implementing, and preventing abuse of regulations concerning duty-free vehicles and consumer goods. Majority opinion at 650. From this, the court concludes that immunizing registration of duty-free vehicles and sales of untaxed consumer goods from labor-management negotiation “would render the statutory duty to bargain a dead letter outside of the boundaries of the United States.” Id. (footnote omitted).

I cannot leap, as the court does, from duty-free vehicles and consumer goods to all manner of items on which a union might wish to bargain. The record before us is entirely void on the question of the range of matters the Army conceives to be bargainable under its interpretation of SOFA constraints. The court’s “dead letter” conclusion, therefore, is at this juncture not even slimly supported. Indeed, the only clue we have runs counter to that conclusion. The Army has stated, albeit without any bill of particulars, that it “fully recognize[s]” the union’s “right and obligation ... to negotiate with management over conditions of employment.” Joint Appendix (J.A.) 85.

Second, the court maintains that Congress intended the President, not the Army, to address situations such as this one. Majority opinion at 650-51. If he is so minded, the President can exclude from Federal Service Labor-Management Relations Statute coverage, in whole or in part, our military installations abroad. 5 U.S.C. § 7103(b)(2). The exercise of that large power could indeed “render the statutory duty to bargain a dead letter outside of the boundaries of the United States.” But the provision for such ultimate and sweeping authority hardly demonstrates “compellingly”3 why the Army’s view of what is now inconsistent with SOFA is “wrong.”

SOFA accords customs and other exemptions to members of the United States armed forces and United States citizen civilian employees stationed in Korea.4 In return, as the court points out, the Army is obliged by the express terms of SOFA to take “such steps as are necessary”5 to prevent abuse of privileges United States personnel enjoy, *203e.g., with respect to the importation of vehicles and post exchange purchases. See Majority opinion at 646. Approximately 39,-000 members of the United States armed forces and 1,100 United States civilian employees served in Korea when the Army was asked to bargain about vehicle registration and post exchange rationing for the benefit of the approximately 235 persons in the unit represented by the union. J.A. 85. The majority believes that reading SOFA to exclude these matters from bargaining would yield “a result that Congress plainly cannot have intended in enacting the Federal Service Labor-Management Relations Statute.” Majority opinion at 650. What Congress did or did not intend as to the novel issue here is less clear to me. I do not agree that the matter is free from doubt. Rather, I seriously question whether Congress intended, when it enacted the Federal Service Labor-Management Relations Statute, that it would take a Presidential decree to place some 235 union-represented civilian employees on the same footing as over 40,-000 other Americans stationed in Korea with respect to the binding force of SOFA-implementing vehicle registration and post exchange purchase regulations.

In sum, I believe the court’s decision, in common with the FLRA’s orders under review, disposes of a matter of “serious concern” without “careful consideration.” See Majority opinion at 650. I would vacate the Authority’s bargaining orders and remand these cases for a fresh determination, on a developed record, of the inconsistency vel non of the union’s proposals with SOFA. Such a remand could assure informed determination whether the Army’s SOFA-inconsistency argument, if accepted by the FLRA, would in fact render the duty to bargain a “dead letter” or, on the contrary, whether that argument recognizes as untouched by the executive agreement a range of bargainable issues. The remand could also assure secure determination whether, in view of conditions prevailing in Korea, the regulations at issue are not appropriately tailored to SOFA s provisions and purposes or, on the contrary, whether they qualify as “essential components” of the Army’s SOFA-compliance plan6 — “steps . . . necessary” to prevent abuse of privileges accorded United States personnel under SOFA.7

. The SOFA did not figure in these cases until the Army’s requests for reconsideration. See Joint Appendix (J.A.) 33, 102. Although the Federal Labor Relations Authority addressed the requests on the merits, see J.A. 65, 114, the matter received abbreviated consideration.

. See J.A. 66, 115-16 (FLRA rulings that bargaining is not excluded by SOFA where the specific regulations in question are not mandated by express terms of SOFA).

. See Majority opinion at 650.

. SOFA art. IX, ¶¶ 2-3 (customs and duties), art. XIII, ¶ 2 (sales taxes), art. XIV, ¶¶ 2-3 (income, property, estate, and gift taxes), art. XXIV, ¶ 3 (automobile registration and licensing fees).

.Id. art. IX, ¶ 8. The provision reads in full:

The United States armed forces, in cooperation with the authorities of the Republic of Korea, shall take such steps as are necessary to prevent abuse of the privileges granted to the United States armed forces, members of such forces, the civilian component, and their dependents in accordance with this Article.

See also id. art. XXVIII, ¶ 1 (Joint Committee consultation on implementation of SOFA).

. SOFA art. IX, ¶ 8, set out supra note 5.

. See J.A. 108.