American Federation of State, County v. Flra

• Citation: 395 F.3d 443
• Decision Date: 14 January 2005
• Docket Number: No. 04-1021.,04-1021.
• Parties: AMERICAN FEDERATION OF STATE, COUNTY & MUNICIPAL EMPLOYEES CAPITAL AREA COUNCIL 26, Petitioner v. FEDERAL LABOR RELATIONS AUTHORITY, Respondent
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 443

395 F.3d 443

AMERICAN FEDERATION OF STATE, COUNTY & MUNICIPAL EMPLOYEES CAPITAL AREA COUNCIL 26, Petitioner v. FEDERAL LABOR RELATIONS AUTHORITY, Respondent

No. 04-1021.

United States Court of Appeals, District of Columbia Circuit.

Argued November 19, 2004.

Decided January 14, 2005.

On Petition for Review of an Order of the Federal Labor Relations Authority.

Sarah J. Starrett argued the cause for petitioner. With her on the briefs was Barbara J. Kraft.

David M. Shewchuk, 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: RANDOLPH, ROGERS, and ROBERTS, Circuit Judges.

ROBERTS, Circuit Judge.

Petitioner American Federation of State, County & Municipal Employees Council 26 ("the Union") challenges an order of the Federal Labor Relations Authority. The Union charged the Federal Aviation Administration before the FLRA with engaging in an unfair labor practice when it refused to execute an agreement reached by the two parties. The Authority dismissed the complaint, finding that the agreement was only tentative and therefore not binding on the FAA. In its petition for review, the Union argues that the Authority's decision (1) is unsupported by substantial evidence and (2) represents an unexplained departure from Authority precedent. We find that the decision is supported by substantial evidence and is not inconsistent with the Authority case law to which the Union directs us. We therefore deny the petition.

I.

This case arises out of negotiations over a collective bargaining agreement covering four units of FAA employees in Washington, D.C. The Union acted as the exclusive representative of the employees. The two sides began negotiations with preliminary discussions in April 2000 continuing until February 2001, at which point they appeared to have settled on the terms of an agreement. The heart of this dispute is whether the agreement was final. The Union argues that it was and the FAA was therefore legally bound to execute it. The FAA takes the opposite view, asserting that the agreement was only tentative pending approval by the Office of Management and Budget.

When the FAA refused to execute the agreement because OMB had not yet approved it, the Union charged the FAA with committing an unfair labor practice. It is an unfair labor practice for an agency to refuse to negotiate with the representative of its employees in good faith. 5 U.S.C. § 7116(a)(5). This duty includes the obligation, "if an agreement is reached, to execute on the request of any party to the negotiation a written document embodying the agreed terms, and to take such steps as are necessary to implement such agreement." Id. § 7114(b)(5).

The matter was referred to an administrative law judge for a hearing. There, the two parties offered conflicting accounts of their negotiations. The FAA claimed that it first informed the Union in April 2000 that any agreement would not be final until approved by OMB. Anthony Herman, one of the FAA's representatives testified that he discussed the requirement of OMB approval with the Union's primary representative, Steven Kreisberg, at their first preliminary meeting. The issue arose again at the first bargaining session in July when Herman told Union representatives that no agreement would be final until approved by the Secretary of Transportation, OMB, and Congress. According to Herman, the Union was well aware of that condition. Union President Gerry McEntee, who was present at the preliminary meeting, began referring to the issue as "the OMB problem" and once offered to call President Clinton if the problem ever became serious. Dept. of Transp., Fed. Aviation Admin. v. Am. Fed'n of State, County & Mun. Employees Council 26, 59 F.L.R.A. 491, 497, 2003 WL 22964322 (2003).

The Union offered a different version of events. Its representatives say they never agreed to OMB approval as a condition of final agreement. According to Union witnesses, the issue was not even mentioned until the fall of 2000. During intense negotiations over pay, they say, Herman told the Union that he had multiple constituents to satisfy, including OMB. Kreisberg then demanded that the FAA bring fully authorized negotiators to the table. According to Union witnesses, Herman responded that he needed prior OMB approval for offers regarding pay, but had full authority to negotiate once he came to the table. An FAA witness gave a similar account of this incident, with an important difference: he stated that FAA representatives made clear only that they had full authority to negotiate a tentative agreement, but nothing would be final until OMB approval.

Negotiations continued into January 2001. The issue of OMB approval arose many times, but the parties disagree sharply about the context. The Union maintains that the issue was prior approval of pay offers; the FAA that approval was a condition of final agreement. On January 19, the two sides — with the outgoing Secretary of Transportation present — reached agreement on pay increases. Officials from the FAA insisted, however, that the details of the agreement not be released until the incoming Secretary, Norman Mineta, was briefed on the deal. Someone from the Union's side apparently let the matter slip, and Herman fired off an email reminding Kreisberg that "there is no agreement until Secretary-designate Minetta [sic] has been briefed." FAA, 59 F.L.R.A. at 499. The email did not mention OMB approval.

The issue of OMB approval came up several times as negotiations neared their conclusion. FAA negotiators recall a January 24 bargaining session at which Herman told the union: "We're very worried that we're not going to get OMB approval. It's a new Administration. It's a new time. We don't know what this OMB is going to say." Kreisberg merely responded, "I understand." Id. at 500. Union witnesses testified that the OMB issue arose when a bargaining session scheduled for January 30 was postponed because FAA negotiators had not received "external clearances." Id. It was not clear at the time what this meant. According to Union witnesses, several days later Herman and Ray Thoman, another FAA representative, informed the Union that the problem had been resolved, specifically mentioning that they had received OMB approval, and that they were ready to make an offer regarding pay.

The two sides reached agreement on the remaining terms on February 5. Their apparent misunderstandings about OMB approval then came to a head. Union witnesses say that Thoman told them to delay announcing the agreement until OMB approved, which he expected would take only a day. Kreisberg objected to OMB approval but agreed nevertheless to delay the announcement. As it turned out, OMB consideration took longer than anticipated. When no answer came the next day, the Union proceeded with ratification. The final agreement was submitted to a vote and approved by the membership on February 21.

The same day, the two sides began an exchange of emails about OMB approval. Herman emailed Kreisberg to remind him that there was no final agreement until OMB approved. Kreisberg responded that he objected to OMB having final authority over the agreement. A subsequent email from Kreisberg informed Herman that the agreement had been ratified. Herman answered that he was "pleased" but that there was no deal until OMB completed its review. Kreisberg again objected.

On February 26, the Union sent a letter to Thoman and Herman requesting execution of the agreement. Herman replied that execution "would be inappropriate" because OMB had not yet approved. The Union filed its unfair labor practice charge with the FLRA on March 20. On May 9, a letter from Herman informed the Union that OMB had declined to approve the deal.

After hearing the evidence, the ALJ concluded that the FAA had not committed an unfair labor practice because final agreement was premised on OMB approval. Her analysis proceeded in two parts. First, she explained, under Authority precedent, an "agreement" for purposes of section 7114(b)(5) is "one in which authorized representatives of the parties come to a meeting of the minds on the terms over which they have been bargaining." FAA, 59 F.L.R.A. at 505. An agreement reached by representatives who are not fully "authorized" is therefore not final and need not be executed. Second, she considered whether the Union had waived its statutory right to deal with authorized representatives of the FAA. This right is found in the duty of good faith, which includes the obligation "to be represented at the negotiations by duly authorized representatives prepared to discuss and negotiate on any condition of employment." 5 U.S.C. § 7114(b)(2). A union may waive this right, the ALJ reasoned, but to be valid, any waiver must be clear and unmistakable.

Applying this framework, the ALJ found that the FAA's negotiators were not "authorized" within the meaning of the statute, but that the Union had waived its right to have such negotiators. The FAA had "clearly set forth its position on OMB approval during the negotiations." FAA, 59 F.L.R.A. at 506. The judge credited FAA representatives Herman and Thoman, finding their testimony "consistent and logical within the time frame of extended negotiations," assigning particular weight to Herman's conversations with McEntee about "the OMB problem." Id. She also relied on evidence presented at the hearing showing that negotiations between the FAA and several other employee units were made contingent on OMB approval. It was "difficult to believe" that the Union was not aware of this. Id. On the issue of waiver, the ALJ found "that the evidence establishes a clear and unmistakable waiver of the Union's statutory rights with regard to the [FAA] having authorized representatives at the table." Id.

The Authority partially affirmed the ALJ's ruling. It...