Department of Health & Human Services, Social Security Administration v. Federal Labor Relations Authority

SPROUSE, Circuit Judge:

I respectfully dissent.

Given the facts underlying the Federal Labor Relations Authority’s action, I do not find it to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A) (1982); see United States Army Engineer Center v. FLRA, 762 F.2d 409, 414 (4th Cir.1985).

Early in 1983, the Social Security Administration (SSA) substantially revised the manual which its field office personnel use to process Supplemental Security Income applications.1 The revisions consisted of *328nine policy changes and approximately ninety clarifications in the manual section dealing with “in-kind support and maintenance.” The National Federation of Federal Employees, the union representing SSA personnel, requested that the agency bargain with it on a proposal to place a six-month moratorium on charging SSA personnel with errors in implementing the manual revisions. The proposal would not have delayed implementation of the revisions nor limited SSA’s ability to note and correct mistakes by SSA personnel. Rather, as the FLRA ruled, the proposal provided the employees with a period in which “to familiarize themselves with substantial revisions ... before they are charged with errors attributable to not following the new procedures.”

The majority correctly notes the limitations on judicial review of FLRA actions and the Supreme Court's admonition that judicial deference does not mean “rubber stamppng] administrative decisions that [courts] deem inconsistent with a statutory mandate or that frustrate the congressional policy underlying a statute.” Bureau of Alcohol, Tobacco and Firearms (BATF) v. FLRA, 464 U.S. 89, 97, 104 S.Ct. 439, 444, 78 L.Ed.2d 195 (1983) (quoting NLRB v. Brown, 380 U.S. 278, 291-92, 85 S.Ct. 980, 988, 13 L.Ed.2d 839 (1965)). I think the proper application of these principles requires our deference to the FLRA’s decision. Congress granted to the FLRA broad authority to resolve disputes between the federal government and its employees. Id. As a result, the FLRA is able to draw upon its extensive experience in dealing with complicated management-employee disputes and in applying the body of precedential law resulting from prior exercise of its authority.

Whether the union proposal here interferes with a substantive management right, and thus is non-negotiable, or whether it relates only to a negotiable procedure observed in exercising a management right is a close question. To me, the rationale which we should apply to resolve the issue is not distinguishable from that utilized to resolve the similar issue presented in American Federation of State, County, and Municipal Employees, Local 2910, AFL-CIO and Library of Congress, 15 FLRA No. 112 (1984). As in Library of Congress, the FLRA here determined that the union proposal would not interfere with a non-negotiable management prerogative. The agency retains its discretion to determine what work shall be done, in what manner and by which employees. It would continue to evaluate employees on their performance but not on performance related to the revisions during a six-month period. While the FLRA decision here may or may not be the construction I would reach in a de novo setting, it is not an unreasonable one. See United States Army Engineer Center, 762 F.2d at 414. For that reason, and because I believe the FLRA decision is not inconsistent with congressional intent in setting forth management rights in 5 U.S.C. § 7106 (1982 & Supp. II 1984), I would enforce the FLRA’s order.

. Supplemental Security Income is a federal cash assistance program providing income to indigent individuals who are blind, disabled or over 65 years of age.