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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 16, 2004 Decided June 15, 2004
No. 03-1321
ASSOCIATION OF CIVILIAN TECHNICIANS,
PUERTO RICO ARMY CHAPTER,
PETITIONER
v.
FEDERAL LABOR RELATIONS AUTHORITY,
RESPONDENT
On Petition for Review of an Order of the
Federal Labor Relations Authority
Daniel M. Schember argued the cause and filed the briefs
for 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. David M. Shewchuk, Attorney, entered an
appearance.
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
Before: HENDERSON, ROGERS and GARLAND, Circuit Judges.
Opinion for the Court filed by Circuit Judge ROGERS.
ROGERS, Circuit Judge: This case is before the court for a
second time. See Ass’n of Civilian Technicians, Puerto Rico
Army Chapter v. FLRA, 269 F.3d 1112 (D.C. Cir. 2001)
(‘‘ACT I’’). After the Department of Defense (‘‘the Agency’’)
had disapproved Provision 2 of a collective bargaining agree-
ment as contrary to law under the Federal Service Labor–
Management Relations Statute, 5 U.S.C. §§ 7101 et seq.,
(hereafter, ‘‘collective bargaining law’’), the Association of
Civilian Technicians, Puerto Rico Army Chapter (‘‘the Un-
ion’’), filed a negotiability appeal with the Federal Labor
Relations Authority (‘‘FLRA’’) pursuant to 5 U.S.C.
§ 7105(a)(2)(E). FLRA agreed with the Agency that Provi-
sion 2 was contrary to law and therefore nonnegotiable under
5 U.S.C. § 7117(a)(1), concluding that Provision 2 expendi-
tures were not authorized by the Travel Expenses Act, 5
U.S.C. §§ 5701, et seq. See Ass’n of Civilian Technicians,
Puerto Rico Army Chapter, 56 F.L.R.A. 807 (2000). The
court reversed, holding that the Travel Expenses Act was
irrelevant, see ACT I, 269 F.3d at 1116, and remanded the
case for FLRA to address two issues presented by the Union,
namely that Provision 2 expenditures are authorized (1) gen-
erally by the collective bargaining law, ‘‘and therefore by the
law that generally authorizes agency expenditures,’’ id. at
1115, 1117–18; or (2) specifically as an ‘‘appropriate arrange-
ment[ ]’’ under 5 U.S.C. § 7106(b)(3) for employees injured as
a result of the Agency’s exercise of the management right to
cancel leave and ‘‘assign work’’ under 5 U.S.C.
§ 7106(a)(2)(B). Id. at 1118. On remand, in again ruling that
Provision 2 was contrary to law, FLRA addressed the first
issue but not the second.
I.
Congress has declared in the collective bargaining law that
‘‘labor organizations and collective bargaining in the civil
service are in the public interest.’’ 5 U.S.C. § 7101(a). The
collective bargaining law therefore protects the rights of
3
federal employees to form or join or refrain from joining any
labor organization, id. § 7102, and imposes on federal agen-
cies and labor organizations a duty to bargain collectively in
good faith. Id. § 7116(a)(5), (b)(5). It also excludes certain
management rights of an agency from inclusion in negotia-
tions, see id. § 7106(a), but requires an agency to bargain
over the procedures by which these management rights are
exercised, id. § 7106(b), including negotiating ‘‘appropriate
arrangements for employees adversely affected by the exer-
cise of any [management] authority.’’ Id. § 7106(b)(3). It
generally requires that federal agencies and labor organiza-
tions bargain in good faith over the terms and conditions of
employment, unless a bargaining proposal is inconsistent with
an existing federal law, rule, or regulation. See id.
§§ 7103(a), 7114, 7116, 7117(a). Thus, if a collective bargain-
ing provision is inconsistent with federal law, see id.
§ 7117(a)(1), or excessively interferes with management’s
rights, see id. § 7106, the provision is nonnegotiable.
Under Provision 2 of the proposed collective bargaining
agreement, the Union seeks reimbursement for its members’
out-of-pocket losses resulting from the Agency’s cancellation
of previously approved leave. The provision provides:
Once leave has be[en] approved and the employer
has a compelling need to cancel the previously ap-
proved leave, the employer agrees not to subject the
employee to a loss of funds expended in planning of
the leave (i.e. hotel reservations, airline tickets, etc.).
The employee will demonstrate the unavoida[bility]
of the loss of funds.
ACT I, 269 F.3d at 1113–14. Because Provision 2 requires
the disbursement of appropriated funds, the question before
FLRA was whether such disbursement is authorized by law.
See U.S. Const. Art. I., § 9, cl. 7; 31 U.S.C. § 1301(a). While
acknowledging that the collective bargaining law does not ‘‘by
itself’’ authorize the Agency to spend money, the Union again
argued before FLRA on remand that ‘‘where Congress gen-
erally has authorized an agency to expend appropriated funds
for agency operations, the collective bargaining law author-
4
izes expenditures to implement contract provisions that are
not otherwise contrary to law.’’ Petitioner’s Supplemental
Statement on Remand at 1 & n.1, Ass’n of Civilian Techni-
cians, Puerto Rico Army Chapter, 2003 WL 190510, 58
F.L.R.A. 318 (2003); see also ACT I, 269 F.3d at 1115. In
other words, ‘‘[t]he collective bargaining law creates new
agency obligations which general agency appropriations may
be used to meet.’’ Petitioner’s Supplemental Statement on
Remand at 1; see also ACT I, 269 F.3d at 1115. The Union
also renewed its position that Provision 2 is alternatively
authorized as an ‘‘appropriate arrangement[ ]’’ under 5 U.S.C.
§ 7106(b)(3), arguing that ‘‘Agency payment of employees’
unavoidable out-of-pocket losses incurred in reliance on the
[A]gency’s grant of leave, subsequently revoked, is a narrow-
ly-tailored remedy for harm inflicted TTT by an [A]gency’s
exercise of its right to TTT [cancel leave and assign work].’’
Petitioner’s Supplemental Statement on Remand at 3.
On the first remanded issue, FLRA concluded that neither
the text of the collective bargaining law, see 5 U.S.C.
§ 7101(a), nor its legislative history provides express or im-
plied authorization for the Agency’s expenditure of appropri-
ated funds for Provision 2 reimbursements. In finding no
express authority, it relied on Bureau of Alcohol, Tobacco &
Firearms v. FLRA, 464 U.S. 89, 104 (1983) (‘‘BATF’’), in
which the Supreme Court stated that ‘‘there is no reference
in the statute or the legislative history to travel expenses and
per diem allowances.’’ In finding that the collective bargain-
ing law also does not provide implicit authorization for such
reimbursements, FLRA relied on this court’s statement in
ACT I that Provision 2 reimbursements do not concern
employees ‘‘traveling on official business,’’ 269 F.3d at 1116,
and concluded that, unlike the disputed provisions in Nation-
al Treasury Employees Union and Bureau of Alcohol, Tobac-
co & Firearms, 26 F.L.R.A. 497, 498 (1987) (‘‘NTEU’’), and
National Federation of Federal Employees and General Ser-
vices Administration, 24 F.L.R.A. 430, 432–33 (1986)
(‘‘GSA’’), Provision 2 does not involve ‘‘official business.’’
FLRA thus rejected the Union’s argument that under NTEU
5
and GSA, the Agency has discretion to use funds appropriat-
ed for general operations for Provision 2 reimbursements.
Then, instead of turning to the second remanded issue,
whether Provision 2 is authorized under 5 U.S.C. § 7106(b)(3)
as an ‘‘appropriate arrangement[ ],’’ FLRA examined whether
there was other statutory authorization for Provision 2 reim-
bursements by looking to the Department of Defense Appro-
priations Act for Fiscal Year 2000, Pub. L. No. 106–79, 113
Stat. 1212, 1216–17 (1999) (‘‘2000 Appropriations Act’’). Cf.
ACT I, 269 F.3d at 1116–17. FLRA concluded that the 2000
Appropriations Act does not expressly authorize Provision 2
reimbursements. Further, assuming the applicability of the
‘‘necessary expense doctrine,’’ which requires that an expendi-
ture be reasonably necessary or reasonably related to or
make a direct contribution to carrying out an authorized
function, see United States General Accounting Office, Office
of the General Counsel, 1 Principles of Federal Appropria-
tions Law 4–14 to 4–22 (2d ed. 1991) (‘‘Principles’’); 71
Comp. Gen. 527, 528 (1992); 63 Comp. Gen. 422, 427–28
(1984); 42 Comp. Gen. 226, 226 (1962), FLRA concluded that
the appropriation for ‘‘Operation and Maintenance’’ for the
Army National Guard in the 2000 Appropriations Act does
not implicitly authorize Provision 2 reimbursements, because
the Union had failed to show that such reimbursements would
make ‘‘any contribution to the Agency’s authorized pur-
poseTTTT’’ Alternatively, FLRA concluded that Provision 2
reimbursements are prohibited by 5 U.S.C. § 5536, which
bars payment to a federal employee of ‘‘additional pay or
allowance’’ beyond that fixed by law for the service or duty.
II.
On appeal, the Union’s overarching contention is that
FLRA failed to consider Congress’s general authorization of
appropriations for the Agency in the context of the collective
bargaining law. According to the Union, because Congress
requires the Agency to conduct its operations in accordance
with the collective bargaining law, reasonably necessary ex-
penses, which are authorized by general appropriations such
6
as in the 2000 Appropriations Act, include expenditures to
carry out negotiated contract terms that are negotiable under
the collective bargaining law. FLRA responds that neither
the collective bargaining law nor the 2000 Appropriations Act
authorizes the expenditure of funds to reimburse civilian
employees for travel and recreational expenses forfeited when
the Agency cancels previously approved leave, and regard-
less, such expenditures are prohibited by 5 U.S.C. § 5536.
A few preliminary observations guide our analysis. The
Union has not argued that express authorization exists for
Provision 2 reimbursements under federal law. Rather, it
contends that implicit authorization for Provision 2 reim-
bursements may be found either pursuant to the collective
bargaining law in conjunction with the 2000 Appropriations
Act or pursuant to the 2000 Appropriations Act. As the
collective bargaining law is FLRA’s own enabling statute and
the court would owe ‘‘considerable deference’’ to FLRA’s
interpretation of it, see BATF, 464 U.S. at 97, the court in
ACT I remanded the case for FLRA to determine whether
implicit authorization for Provision 2 reimbursements could
be found either (1) through the ‘‘official business’’ test recog-
nized by the Supreme Court in BATF, 464 U.S. at 107 n.17,
and by FLRA in NTEU, 26 F.L.R.A. at 498 and GSA, 24
F.L.R.A. at 432–33, because Provision 2 reimbursements are
sufficiently within the interest of the Agency to constitute
‘‘official business’’ and as such, such reimbursements are
implicitly authorized under the 2000 Appropriations Act; or
(2) through 5 U.S.C. § 7106(b)(3), because Provision 2 is an
‘‘appropriate arrangement[ ] for employees adversely affected
by the exercise of TTT [management’s] authority’’ to cancel
leave and ‘‘assign work’’ and as such, the reimbursements are
implicitly authorized under the 2000 Appropriations Act. See
ACT I, 269 F.3d at 1118. Another approach for finding
implicit authorization of Provision 2 reimbursements not ad-
dressed in the court’s remand, but which FLRA addressed on
remand, and as to which the court would owe no deference to
FLRA’s interpretation, see Ass’n of Civilian Technicians,
Tony Kempenich Memorial Chapter 21 v. FLRA, 269 F.3d
1119, 1121 (D.C. Cir. 2001) (‘‘Tony Kempenich’’), would be
7
based on the ‘‘necessary expense doctrine’’ through which
Provision 2 reimbursements might be found to be authorized
under the 2000 Appropriations Act.
We first examine FLRA’s interpretation of the collective
bargaining law, then turn to its interpretation of the 2000
Appropriations Act, and finally address its alternative ruling
on 5 U.S.C. § 5536.
A.
In rejecting the Union’s reliance on NTEU and GSA for
the proposition that the collective bargaining law, in conjunc-
tion with general appropriations laws, implicitly authorizes
Provision 2 reimbursements, FLRA took the position that
Provision 2 ‘‘does not involve the Agency’s exercise of discre-
tion in determining whether these expenses concern ‘official
business.’ ’’ Although the court generally owes deference to
FLRA’s interpretation of the collective bargaining law, see
BATF, 464 U.S. at 97 & n.7; Patent Office Prof’l Ass’n v.
FLRA, 47 F.3d 1217, 1220 (D.C. Cir. 1995); 5 U.S.C.
§§ 706(2)(A), 7123(c), FLRA must ‘‘provide a rational expla-
nation for its decision.’’ FDIC v. FLRA, 977 F.2d 1493, 1496
(D.C. Cir. 1992); see also Motor Vehicle Mfrs. Ass’n v. State
Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). In
addressing the first remanded issue, FLRA has not done so.
Precisely what activity constitutes ‘‘official business’’ is a
context-specific determination that requires an evaluation of
factors that Congress has determined FLRA is well suited to
do. See BATF, 464 U.S. at 97. It is clear that the term has
some elasticity. The Supreme Court acknowledged in BATF
that its conclusion that ‘‘federal agencies may not be required
under [the ‘official time’ provision in 5 U.S.C.] § 7131(a) to
pay the travel expenses and per diem allowances of union
negotiators does not, of course, preclude an agency from
making such payments upon a determination that they serve
the convenience of the agency or are otherwise in the primary
interest of the GovernmentTTTT’’ 464 U.S. at 107 n.17.
FLRA itself has construed the term ‘‘official business’’ prag-
matically, concluding that the appropriate inquiry is whether
8
the provision is ‘‘sufficiently within the interest of the United
States so as to constitute official business.’’ See NTEU, 26
F.L.R.A. at 498; GSA, 24 F.L.R.A. at 432–33. Yet on
remand FLRA relied on the court’s statement in ACT I that
Provision 2 ‘‘does not necessarily even involve canceled travel,
and it certainly does not address official business.’’ 269 F.3d
at 1116. When read in context, it is clear that the court was
referring to the fact that Provision 2 does not relate to official
travel, i.e., ‘‘travel expenses, personal, official, or otherwise,’’
to which the Travel Expenses Act would apply. That is a
different question than whether Provision 2 reimbursements
would be authorized under the ‘‘official business’’ standard.
At no point on remand did FLRA evaluate whether Provi-
sion 2 might or might not constitute ‘‘official business’’ within
the meaning of the BATF footnote and its own precedent. It
did not address the Union’s argument that the collective
bargaining law, see 5 U.S.C. §§ 7106(b)(3), 7114, being itself
sufficiently within the interest of the United States, see id.
§ 7101, creates ‘‘official business’’ that would not be ‘‘official
business’’ in the absence of the law. Neither did it address
the implications of its previous rulings in NTEU and GSA
that the Agency could exercise its discretion to use appropri-
ated funds for union-use of government telephones for labor-
management relations. See NTEU, 26 F.L.R.A. at 498;
GSA, 24 F.L.R.A. at 433. Nor did it address whether for
reasons of adequate staffing, retention, recruitment, or mo-
rale, for example, such reimbursements might advance the
Agency’s interests or convenience.
In addition, FLRA failed to address at all the second
remanded issue in ACT I, namely whether Provision 2 reim-
bursements would be authorized as an ‘‘appropriate arrange-
ment[ ]’’ under 5 U.S.C. § 7106(b)(3) and therefore implicitly
authorized under the 2000 Appropriations Act. If Provision 2
reimbursements are not authorized by law, Provision 2 will be
deemed inconsistent with federal law under 5 U.S.C.
§ 7117(a)(1), which bars negotiation on matters ‘‘inconsistent
with any Federal law or any Government-wide rule or regula-
tion.’’ Provision 2, however, may constitute an ‘‘appropriate
arrangement[ ]’’ if it is intended to be an arrangement for
9
employees adversely affected by management’s exercise of its
rights, and does not ‘‘excessively interfere[ ]’’ with the exer-
cise of management rights under 5 U.S.C. § 7106(a). Nat’l
Ass’n of Gov’t Employees, 21 F.L.R.A. 24, 29–33 (1986); see
also U.S. Dep’t of Treasury, Office of the Chief Counsel, IRS
v. FLRA, 960 F.2d 1068, 1072–73 (D.C. Cir. 1992); Am. Fed’n
of Gov’t Employees, ALF–CIO, Local 2782 v. FLRA, 702 F.2d
1183, 1185–88 (D.C. Cir. 1983). To make that determination
FLRA would need to address (1) whether employees have
been adversely affected, (2) by a management decision, and if
so, (3) whether reimbursement of resulting monetary losses
are likely to interfere excessively with management rights.
To the extent that (1) and (2) are undisputed, inasmuch as
Union members will, absent reimbursement, incur out-of-
pocket losses as a result of management’s recall decision
pursuant to its right under 5 U.S.C. § 7106(a)(2)(B) to cancel
leave and to ‘‘assign work,’’ the conclusion as to (3) may turn
on a variety of considerations, including, for example, whether
or not there is a cap on the amount of individual expenditures
or a limited period of time for covered expenditures so as not
to chill ‘‘excessively’’ management’s exercise of its rights in
response to the needs of the Guard. But if Provision 2’s out-
of-pocket losses are directly caused by the Agency’s exercise
of its management rights, it is possible to view that reim-
bursement as not for purely personal expenses, but rather for
an ‘‘appropriate arrangement[ ]’’ to compensate civilian tech-
nicians harmed by the exercise of management rights. The
‘‘appropriate arrangement[ ]’’ determination, moreover, will
inform FLRA’s analysis of whether Provision 2 reimburse-
ments are for or related to ‘‘official business’’ if they advance
the Agency’s interests or convenience.
B.
Had FLRA addressed the second remanded issue, there
might have been no occasion for it to interpret the 2000
Appropriations Act. The one member of FLRA who ad-
dressed the issue concluded that Provision 2 was not an
‘‘appropriate arrangement[ ],’’ and were such a conclusion
adequately explained, that, absent express congressional au-
10
thorization for such reimbursements, would presumably be
the end of the matter. In any event, upon de novo review, for
the court owes no deference to FLRA’s interpretation of the
appropriations act, see Tony Kempenich, 269 F.3d at 1121,
the court is unable to determine on the basis of the present
administrative record whether Provision 2 reimbursements
are implicitly authorized under the 2000 Appropriations Act.
FLRA acknowledged on remand that 31 U.S.C. § 1301(a),
which provides that ‘‘[a]ppropriations shall be applied only to
the objects for which the appropriations were madeTTTT,’’
does not require that every authorized expenditure be ex-
pressly authorized in an appropriations act. See Ass’n of
Civilian Technicians, Puerto Rico Army Chapter, 2003 WL
190510, at *9, 58 F.L.R.A. 318 (2003) (citing 1 Principles,
supra, at 4–15). Under the ‘‘necessary expense doctrine,’’ the
Comptroller General has opined that expenditures not explic-
itly authorized in an appropriations act may nonetheless be
lawful. See 6 Comp. Gen. 619, 621 (1927); 1 Principles,
supra, at 4–15 to 4–16. In rejecting the Union’s reliance on
the 2000 Appropriations Act as implicitly authorizing the use
of appropriated funds to carry out negotiated agreements,
FLRA concluded that ‘‘reimbursement of such personal ex-
penses TTT is neither reasonably necessary nor relevant to
maintaining the Agency’s operations that necessitated the
cancellation of leave.’’ Ass’n of Civilian Technicians, Puerto
Rico Army Chapter, 2003 WL 190510, at *9. It is not,
however, self-evident under the ‘‘necessary expense doctrine,’’
which FLRA assumed applied without deciding, that use of
the Agency’s appropriations for Provision 2 reimbursements
would be unlawful. Whether for reasons of adequate staffing,
retention, recruitment, or morale, for example, Provision 2
reimbursements could make a ‘‘contribution’’ to carrying out
an authorized function, such as ‘‘assign[ing] work.’’ See 5
U.S.C. § 7106(a)(2)(B). Deciding that question would require
additional information both about the Agency’s function with
regard to the Guard and about the expenditures authorized in
the 2000 Appropriations Act for Agency operations and main-
tenance. FLRA noted on remand that neither party had
addressed the applicability of the 2000 Appropriations Act,
11
nor whether the Agency uses funds appropriated for the
Guard’s operations and maintenance for operations related to
civilian Guard technicians. See Ass’n of Civilian Techni-
cians, Puerto Rico Army Chapter, 2003 WL 190510, at *8 n.5.
To the extent that FLRA looked to 10 U.S.C. § 1053a as
support for its conclusion that Provision 2 reimbursements
are not implicitly authorized by the 2000 Appropriations Act,
its reliance was misplaced. Under 10 U.S.C. § 1053a(a),
military personnel may receive reimbursement for ‘‘travel and
related expenses TTT incurred by the member as a result of
the cancellation of previously approved leave when the leave
is canceled in connection with the member’s participation in a
contingency operation and the cancellation occurs within 48
hours of the time the leave would have commenced.’’ FLRA
ignored, however, that military personnel do not enjoy the
collective bargaining rights accorded to civilian employees
under the collective bargaining law for the terms and condi-
tions of their employment. Compare 5 U.S.C. §§ 7102, 7114
with 10 U.S.C. § 976; see Ass’n of Civilian Technicians,
Wichita Air Capitol Chapter v. FLRA, 360 F.3d 195, 196
(D.C. Cir. 2004). Congress, consequently, must enact specific
laws to provide military personnel any employment rights or
benefits, including reimbursement for such out-of-pocket loss-
es. See 10 U.S.C. § 976(c)(2). FLRA thus failed to consider
adequately the Union’s argument that, by parity of reasoning,
Provision 2 reimbursements are statutorily authorized be-
cause the collective bargaining law lends a similar congres-
sional imprimatur to conditions of employment resulting from
collective bargaining agreements.
C.
FLRA’s alternate holding that Provision 2 reimbursements
are barred by 5 U.S.C. § 5536 is likewise flawed. Section
§ 5536 prohibits the receipt by federal employees with statu-
torily fixed salaries of ‘‘additional pay or allowance TTT for
any other service or duty’’ without specific authorization.
The plain text of § 5536 limits its reach to payment for ‘‘other
12
service or duty’’ falling within a federal employee’s duties for
which compensation is fixed by Congress. The Supreme
Court explained in Stansbury v. United States, 75 U.S. 33, 37
(1868), of § 5536’s predecessor, 5 U.S.C. § 70 (1842), that
‘‘[t]he law was passed to remedy an evil which had existed, of
detailing officers with fixed pay to perform duties outside of
their regular employment, and paying them for it, when the
government was entitled, without this double pay, to all their
services.’’ See also Mullett v. United States, 150 U.S. 566,
569–70 (1893); United States v. Johnson, 173 U.S. 363, 372–
81 (1899); Lewis v. United States, 244 U.S. 134, 145–46
(1917).
Congress’s concern with ‘‘additional pay or allowance’’ is
not implicated by negotiation of a ‘‘condition of employment’’
under the collective bargaining law, see 5 U.S.C. § 7114, to
reimburse civilian employees for out-of-pocket losses incurred
as a result of the Agency’s exercise of a management right.
See id. § 7106(a)-(b). Upon recall, Union members will re-
ceive their regular fixed compensation for service to the
Guard; the question is not whether they will receive addition-
al pay for ‘‘other service or duty,’’ but whether they must
absorb unavoidable monetary losses caused by the Agency’s
recall. There was no suggestion in Stansbury that reim-
bursement of expenses incurred as a result of employment is
prohibited by § 5536; indeed, the actual expenses had been
paid in that case. 75 U.S. at 34–35, 36. Counsel for FLRA
conceded at oral argument that the Agency has discretion to
negotiate reimbursements for personal expenses such as uni-
form allowances, certain health benefits, and personal travel
expenses associated with transporting the employee to the
work site upon recalling the employee’s leave. FLRA’s view
that Agency reimbursement of such personal expenses is not
‘‘additional pay or allowance’’ prohibited under § 5536 weak-
ens its reliance on § 5536 in concluding that Provision 2
reimbursements are barred and, therefore, nonnegotiable un-
der the collective bargaining law.
Because FLRA’s decision on remand failed to provide an
adequate explanation of its decision on the first remanded
issue and failed altogether to address the second remanded
13
issue, we grant the petition and remand the case to FLRA.
This time on remand FLRA shall, if it adheres to its conclu-
sion on the first remanded issue in ACT I, provide an
explanation in accordance with the guidance provided by this
opinion and in light of any further arguments of the Union or
the Agency on remand. In addition, in order to avoid another
remand in the event the Union petitions for review of FLRA’s
adherence to its original position on the first remanded issue,
FLRA shall also determine whether Provision 2 is an ‘‘appro-
priate arrangement[ ]’’ under 5 U.S.C. § 7106(b)(3).