Natl Assn Govt Empl v. FLRA

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 11, 1999 Decided June 25, 1999

No. 98-1313

National Association of Government Employees, Inc.,
Petitioner

v.

Federal Labor Relations Authority,
Respondent

Department of Veterans Affairs Medical Center,
Lexington, Kentucky,
Intervenor

 No. 98-1317

National Association of Government Employees, Local R1-8,
Petitioner

v.

Federal Labor Relations Authority,
Respondent

Department of the Air Force, 647th Air Base Group,
Hanscom Air Force Base, Massachusetts,
Intervenor

No. 98-1377

Patent Office Professional Association,
Petitioner

v.

Federal Labor Relations Authority,
Respondent

United States Department of Commerce,
Patent and Trademark Division,
Intervenor

On Petitions for Review of Orders of the
Federal Labor Relations Authority

Robert H. Shriver, III argued the cause for the petitioners.
Gregory O'Duden and Barbara A. Atkin were on brief for
petitioner Patent Office Professional Association. Neil C.
Bonney was on brief for petitioners National Association of

Government Employees, Inc. and National Association of
Government Employees, Local R1-8.

David M. Smith, Solicitor, Federal Labor Relations Au-
thority, argued the cause for the respondent. William R.
Tobey, Deputy Solicitor, and Ann M. Boehm, Attorney, Fed-
eral Labor Relations Authority, were on brief for the respon-
dent.

Alfred Mollin, Counsel, United States Department of Jus-
tice, argued the cause for the intervenors. David W. Ogden,
Acting Assistant Attorney General, and William Kanter,
Deputy Director, United States Department of Justice, were
on brief for the intervenors.

Mark D. Roth, Charles A. Hobbie and Kevin M. Grile were
on brief for amicus curiae American Federation of Govern-
ment Employees, AFL-CIO.

Before: Henderson, Randolph and Garland, Circuit
Judges.

Opinion for the court filed by Circuit Judge Henderson.

Karen LeCraft Henderson, Circuit Judge: The petition-
ers, labor unions representing federal employees, seek review
of the decisions of the Federal Labor Relations Authority
(FLRA or Authority) that three federal agencies did not
commit unfair labor practices when they refused to bargain
over matters covered by section 7106(b)(1) of the Federal
Service Labor-Management Relations Statute (FSLMRS), 5
U.S.C. s 7106(b)(1). They contend that the FLRA incorrect-
ly determined that section 2(d) of Executive Order 12871 (EO
12871), 58 Fed. Reg. 52,201, 52,202-03 (1993), which provides
that agencies "shall ... negotiate over the subjects set forth
in 5 U.S.C. s 7106(b)(1)," did not constitute an election to
bargain over matters covered by 5 U.S.C. s 7106(b)(1). We
agree with the FLRA and hold that section 2(d) of EO 12871
did not effect an election under 5 U.S.C. s 7106(b)(1). Ac-
cordingly, we deny the petitions for review.1

__________
1 On April 15, 1999 we issued an order consolidating POPA v.
FLRA, No. 98-1377 with NAGE v. FLRA, Nos. 98-1313, 98-1317
for oral argument and, now, disposition.

I.

The Patent Office Professional Association (POPA) and the
National Association of Government Employees (NAGE) are
labor unions representing federal employees. The United
States Department of Commerce, Patent and Trademark
Office (PTO), the United States Department of Veterans
Affairs (Veteran Affairs) and the United States Department
of the Air Force (Air Force) (collectively agencies) are federal
agencies subject to the FSLMRS's collective bargaining re-
quirement and thus must bargain with their employees over
all labor issues not statutorily excluded therefrom. See 5
U.S.C. s 7102 ("Except as otherwise provided" federal em-
ployees have right to unionize and "to engage in collective
bargaining"). Relevant here, 5 U.S.C. s 7106(a)(2) excludes
certain "management rights" from the obligation to negoti-
ate.2 The right not to bargain over management rights is,
however, limited by 5 U.S.C. s 7106(b).3 Section 7106(b)
__________
2 Section 7106(a) (2) provides:
(a) Subject to subsection (b) of this section, nothing in this
chapter shall affect the authority of any management official of
any agency--
...
(2) in accordance with applicable laws--

(A) to hire, assign, direct, layoff, and retain employees
in the agency, or to suspend, remove, reduce in grade or
pay, or take other disciplinary action against such employ-
ees;
(B) to assign work, to make determinations with respect
to contracting out, and to determine the personnel by
which agency operations shall be conducted;
(C) with respect to filling positions, to make selections
for appointments from--

(i) among properly ranked and certified candidates
for promotion; or

(ii) any other appropriate source; and

(D) to take whatever actions may be necessary to carry
out the agency mission during emergencies.
5 U.S.C. s 7106(a)(2).
3 The relevant part of section 7106(b) provides:requires an agency to negotiate about the procedures it uses
in exercising its management rights, 5 U.S.C. s 7106(b)(2), as
well as the "appropriate arrangements for employees ad-
versely affected" by the exercise of management rights, id.
s 7106(b)(3). Section 7106(b)(1) also authorizes the agency,
"at [its] election," to negotiate on certain enumerated matters.
5 U.S.C. s 7106(b)(1); see also Association of Civilian Tech-
nicians, Montana Air Chapter v. FLRA, 22 F.3d 1150, 1155
(D.C. Cir. 1994) (explaining relationship between s 7106(a)
and s 7106(b)(1)).

On October 1, 1993 the President issued EO 12871, entitled
"Labor-Management Partnerships." The introductory provi-
sions declare its purpose is "to establish a new form of labor-
management relations throughout the executive branch to
promote the principles and recommendations adopted as a
result of the National Performance Review." 58 fed. Reg. at
52,201. Section 2 of EO 12871 provides in part that "[t]he
head of each agency ... shall ... (d) negotiate over the
subjects set forth in 5 U.S.C. s 7106(b)(1), and instruct
subordinate officials to do the same." 58 Fed. Reg. at 52,202-
03.4 Section 3 provides that

__________
(b) Nothing in this section shall preclude any agency and any
labor organization from negotiating--

(1) at the election of the agency, on the numbers, types, and
grades of employees or positions assigned to any organiza-
tional subdivision, work project, or tour of duty, or on the
technology, methods, and means of performing work.
5 U.S.C. s 7106(b)(1).

4 Section 2 of EO 12871 provides:
Implementation of Labor-Management Partnerships
Throughout the Executive Branch. The head of each agency
subject to the provisions of chapter 71 of title 5, United States
Code shall:
(a) create labor-management partnerships by forming labor-
management committees or councils at appropriate levels, or
adapting existing councils or committees if such groups exist, to
help reform Government;

(b) involve employees and their union representatives as full
partners with management representatives to identify prob-
[t]his order is intended only to improve the internal
management of the executive branch and is not intended
to, and does not, create any right to administrative or
judicial review, or any other right, substantive or proce-
dural, enforceable by a party against the United States,
its agencies or instrumentalities, its officers or employ-
ees, or any other person.

Id. at 52,203.

On December 16, 1993, the Office of Personnel Manage-
ment (OPM) issued "Guidance for Implementing Executive
Order 12871" (Guidance). The Guidance declares that, ac-
cording to EO 12871, "bargaining over the subjects set forth
in 5 U.S.C. s 7106(b)(1) is now mandatory, and a failure by
agency managers to engage in such bargaining would be
inconsistent with the President's directive." POPA Br. at
A-5. OPM also noted that

[i]n the event the parties are unable to reach an agree-
ment, they are encouraged to use the Federal Mediation
and Conciliation Service as well as any other mutually
agreed-upon dispute resolution processes.... If that
does not result in an agreement, either party may, in
accordance with 5 U.S.C. s 7119, take the impasse to the
Federal Service Impasses Panel or to an arbitrator
__________
lems and craft solutions to better serve the agency's customers
and mission;

(c) provide systematic training of appropriate agency em-
ployees (including line managers, first line supervisors, and
union representatives who are Federal employees) in consensu-
al methods of dispute resolution, such as alternative dispute
resolution techniques and interest-based bargaining ap-
proaches;

(d) negotiate over the subjects set forth in 5 U.S.C.
7106(b)(1), and instruct subordinate officials to do the same;
and

(e) evaluate progress and improvements in organizational
performance resulting from the labor-management partner-
ships.
58 Fed. Reg. at 52,202-03.
agreed upon by the parties under the procedures ap-
proved by the Panel.

Id.

After the issuance of the Guidance, the three respondent
agencies refused to bargain over various management rights
issues.5 NAGE and POPA then filed unfair labor charges
against the agencies. After conducting hearings, the adminis-
trative law judge (ALJ) in each case ruled that, with one
exception, the agencies had not committed unfair labor prac-
tices when they refused to bargain over section 7106 (b)(1)
issues because EO 12871 did not constitute a section
7106(b)(1) election.6 See United States Dep't of Veterans
Affairs Med. Ctr., Lexington, Ky., Case No. CH-CA-50399
(Aug. 26, 1997) (NAGE Joint Appendix (JA) 19-25); United
States Dep't of the Air Force, Hanson AFB, Mass., Case No.
BN-CA-41011 (July 31, 1996) (NAGE JA 33-37); United
States Dep't of Commerce, Patent & Trademark Office, Case
No. WA-CA-40743 (July 9, 1996) (POPA JA 32-46). NAGE
and POPA then filed exceptions to the respective ALJ's
rulings. On November 17, 1997 the FLRA decided that PTO
had refused to negotiate on a section 7106(b)(1) matter. See
United States Dep't of Commerce, Patent & Trademark
Office (Commerce I), 53 F.L.R.A. 858 (1997) (discussed supra
note 6). The Authority concluded, however, that the record
was inadequate for it to determine if EO 12871 effected an
election. Accordingly, it deferred consideration of the issue

__________
5 PTO refused to bargain over whether to hire computer science
patent examiners for two-year terms or as permanent appointees,
the Air Force filled several vacant positions without negotiation and
the Veteran Affairs implemented, without negotiation, its decision
to allow lab technicians to perform "certain Dental Assistant duties
on a regular rotational basis." NAGE JA 21.

6 In Department of Commerce, the ALJ found that PTO did
commit an unfair labor practice by failing to negotiate regarding the
implementation of its decision to hire new patent examiners. See
POPA Joint Appendix (JA) 38. The Authority affirmed this hold-
ing, United States Dep't of Commerce, Patent & Trademark Office,
53 F.L.R.A. 858, 859 (1997), and PTO has not appealed.

and invited additional submissions from the parties and ami-
cus curiae.7 See Commerce I, 53 F.L.R.A. at 879; see also 62
Fed. Reg. 62,315 (1997). After considering the submissions,
the FLRA ruled that EO 12871 did not effect an election to
negotiate on section 7106(b)(1) issues. See United States
Dep't of Commerce, Patent & Trademark Office (Commerce
II), 54 F.L.R.A No. 43 (1998). Accordingly, it found that
PTO's refusal to negotiate did not constitute an unfair labor
practice. Subsequently, the FLRA rejected NAGE's claims
of unfair labor practices against the Air Force and Veteran
Affairs based on its decision in Commerce II. See United
States Dep't of Veterans Affairs Med. Ctr., Lexington, Ky., 54
F.L.R.A. No. 44 (June 19, 1998); United States Dep't of the
Air Force, Hanson AFB, Mass., 54 F.L.R.A. No. 46 (June 19,
1998). POPA and NAGE then petitioned this court for
review. The respondent agencies below intervened.

II.

While "the Authority is entitled to considerable deference
when it exercises its 'special function of applying the general
provisions of the Act to the complexities' of federal labor
relations," Bureau of Alcohol, Tobacco & Firearms v. FLRA,
464 U.S. 89, 97 (1983), we do not defer when the Authority
interprets statutes (and regulations) outside its domain. See
National Treasury Employees Union v. FLRA (NTEU), 848
F.2d 1273, 1275 (D.C. Cir. 1988) ("[W]e need not defer to [the
FLRA's] interpretation of ... regulations promulgated by
other agencies."); INS v. FLRA, 709 F.2d 724, 729 n.21 (D.C.
Cir. 1983) ("[The FLRA's] reconciliation involves interpreting
a statutory provision not within its enabling statute--a provi-

__________
7 Amici briefs were submitted by: (1) OPM; (2) Department of
the Interior; (3) American Federation of Government Employees,
AFL-CIO and the Public Employee Department of the Labor-
Congress of Industrial Organizations (AFGE); (4) Association of
Civilian Technicians; (5) National Air Traffic Controllers Associa-
tion; (6) National Treasury Employees Union; (7) Senior Execu-
tives Association; and (8) Professional Airways Systems Specialists.
Commerce II, 54 F.L.R.A. no. 43 at 3 n. 4. Only AFGE appears as
amicus before us.

sion not within its expertise. Hence we need not defer to
it."); see also American Fed'n of Gov't Employees, Local
2782 v. FLRA, 803 F.2d 737, 740 n.1 (D.C. Cir. 1986) (declin-
ing to adopt FLRA's "novel proposition" that it was entitled
to "middle level deference" when interpreting OPM's Federal
Practice Manual). Therefore, because the FLRA's decision is
based on an interpretation of EO 12871, and not the
FSLMRS, we review its determination de novo. See NTEU,
848 F.2d at 1275. "[W]e shall, of course, follow its reasoning
to the extent that we deem it sound." Department of Trea-
sury v. FLRA, 837 F.2d 1163, 1167 (D.C. Cir. 1988).

As the parties agree, section 2(d) of the EO is mandatory--
"[t]he head of each agency ... shall ... negotiate." Con-
trary to the petitioners' assertion, however, the mandatory
language does not constitute a section 7106(b)(1) election.
First, the plain language of the EO does not recite that the
President elects to negotiate; instead, it declares that he has
directed his subordinates to take certain action. As the
FLRA noted, construing the EO to constitute a direction, but
not an election, gives meaning to the "precise words" of
section 2(d) by recognizing that "[d]irecting another to under-
take an act is not necessarily the same as undertaking the act
oneself." Commerce II, 54 F.L.R.A. No. 43, at 19. This
distinction is not merely an "immaterial semantic" one, as
POPA suggests. POPA Br. at 26. For example, if the
President orders the Secretary of State to terminate an
employee, the order does not effect the termination--only the
Secretary of State can terminate an employee whom the
Secretary was statutorily authorized to appoint. See NTEU
v. Regan, 663 F.2d 239, 247-48 (D.C. Cir. 1981).

Moreover, contrary to NAGE's claim, our interpretation
does not lead to the "absurd result" that an "agency that
obeys an Executive Order ... will be subject to the coverage
of the Statute, but the insubordinate executive agency that
disregards the President's order may evade statutory cover-
age." NAGE's Br. at 34. An insubordinate agency is subject
to Executive Branch enforcement of the EO through persua-
sion and, ultimately, termination of the resisting official. Cf.
NTEU, 663 F.2d at 247-48 ("The President can, of course,

order the Secretary of State to revoke the appointment, and
can fire the Secretary of Defense if he refuses to revoke it.").
This result is not, as the petitioners assert, inconsistent with
the concept of a "unitary executive." Rather, by interpreting
EO 12871 as we do, that is, as an order but no more, we
reaffirm the President's authority "[t]o insure [his] control
and supervision over the Executive Branch," Sierra Club v.
Costle, 657 F.2d 298, 405 (D.C. Cir. 1981), but without finding
him to have exercised that control through any means beyond
an order to his subordinates.

More important, careful examination of section 2(d), as well
as of the remainder of EO 12871, manifests that the President
did not intend to "translate[ ] the verb 'shall' into ... an
election, making the direction to agencies enforceable not
only by the President as chief executive, but also by a
prosecutor through adjudicatory proceedings before the Au-
thority, appealable to and ultimately enforceable by the Fed-
eral courts." Commerce II, 54 F.L.R.A. No. 43, at 18.
Section 3, as earlier noted, provides that the EO "is intended
only to improve the internal management" and "does not[ ]
create any right to administrative or judicial review, or any
other right, substantive or procedural, enforceable by a par-
ty." 58 Fed. Reg. at 52,203. Cf. John Hancock Mut. Life
Ins. Co. v. Harris Truck & Sav. Bank, 510 U.S. 86, 94-95
(1993) (courts interpret statutes by "looking to the provisions
of the whole law").

Because the language of EO 12871 in its entirety is clear,
and because the petitioners provide no reason to depart
therefrom,8 we conclude that EO 12871 does not constitute a

__________
8 The petitioners argue that because OPM is the " 'controlling
agency regarding civil service matters,' " POPA Br. at 29, its
Guidance provides strong evidence that the EO effected an election.
But the Guidance, assuming it reflects OPM's belief that the EO
effected an election, is insufficient to overcome the plain language of
the EO. Cf. Rubin v. United States, 449 U.S. 424, 430, (1981)
("When we find the terms of a statute unambiguous, judicial inquiry
is complete, except in rare and exceptional circumstances." (quota-
tions omitted)).

section 7106(b)(1) election. Accordingly, the petitions for
review are

Denied.