American Federation of Government Employees, AFL-CIO, Local 2782 v. Federal Labor Relations Authority, AFL-CI

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Writing for the CourtBefore MacKINNON, WALD and SCALIA; SCALIA
Citation702 F.2d 1183,226 U.S.App.D.C. 446
Parties112 L.R.R.M. (BNA) 3112, 226 U.S.App.D.C. 446 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,2782, Petitioner, v. FEDERAL LABOR RELATIONS AUTHORITY, Respondent.
Decision Date18 March 1983
Docket NumberNo. 81-2386,LOCAL,AFL-CI

Page 1183

702 F.2d 1183
112 L.R.R.M. (BNA) 3112, 226 U.S.App.D.C. 446
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL
2782, Petitioner,
v.
FEDERAL LABOR RELATIONS AUTHORITY, Respondent.
No. 81-2386.
United States Court of Appeals,
District of Columbia Circuit.
Argued Oct. 28, 1982.
Decided March 18, 1983.

Page 1184

Petition for Review of an Order of the Federal Labor Relations authority.

Phillip R. Kete * with whom Daniel Schember, Washington, D.C., on pleadings, for petitioner.

Janice M. Xaver, Washington, D.C., on brief, for petitioner.

Pamela P. Johnson and Elizabeth Medaglia, Federal Labor Relations Authority, Washington, D.C., on brief, for respondent.

Before MacKINNON, WALD and SCALIA, Circuit Judges.

Opinion for the Court filed by Circuit Judge SCALIA.

SCALIA, Circuit Judge:

This case raises the issue of a federal agency's duty to bargain under the Federal Service Labor-Management Relations Act, 5 U.S.C. Secs. 7101-7135 (Supp. III 1979), concerning promotion rights of employees demoted through no fault of their own--for example, through necessary reductions in force (RIFs). Local 2782 of the American Federation of Government Employees, which represents employees in the Bureau of the Census, United States Department of Commerce, proposed the following arrangement:

[A] repromotion eligible (i.e., an employee demoted through no fault of his or her own) will be selected for the first available vacancy for which he or she fully meets the qualification standards and which the agency determines to fill.

The agency refused to bargain over the proposal, on the ground that it was "inconsistent with [a] Federal law or [a] Government-wide rule or regulation." 5 U.S.C. Sec. 7117(a)(1). The union appealed this action to the Federal Labor Relations Authority under 5 U.S.C. Sec. 7117(c)(1), which provides that "if an agency involved in collective bargaining with an exclusive representative alleges that the duty to bargain in good faith does not extend to any matter, the exclusive representative may appeal the allegation to the Authority ...." The Authority affirmed the agency, and the union now seeks our review under 5 U.S.C. Sec. 7123.

The Federal Service Labor-Management Relations Act, enacted as Title VII of the Civil Service Reform Act of 1978, Pub.L. No. 95-454, 92 Stat. 1191 (codified at 5 U.S.C. Secs. 7101-7135 (Supp. III 1979)), was meant to implement the principle that "the right of Federal employees to organize, bargain collectively, and participate through labor organizations in decisions which affect them, with full regard for the public interest and the effective conduct of public business, should be specifically recognized in statute." Pub.L. No. 95-454, Sec. 3(10), 92 Stat. 1113. It rests upon the proposition

Page 1185

that "labor organizations and collective bargaining in the civil service are in the public interest." 5 U.S.C. Sec. 7101(a). The Act contains a number of provisions designed to reconcile collective bargaining with the distinctive needs of government employment. Among these is the provision that the Authority relied upon in the present case, 5 U.S.C. Sec. 7106, which reads as follows:

Sec. 7106. Management rights

(a) Subject to subsection (b) of this section, nothing in this chapter shall affect the authority of any management official of any agency--

(1) to determine the mission, budget, organization, number of employees, and internal security practices of the agency; and

(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 employees;

(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.

(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 organizational subdivision, work project, or tour of duty, or on the technology, methods, and means of performing work;

(2) procedures which management officials of the agency will observe in exercising any authority under this section; or

(3) appropriate arrangements for employees adversely affected by the exercise of any authority under this section by such management officials.

The Authority held that "[t]he disputed proposal is inconsistent with section 7106(a)(2)(C) of the Statute and is, therefore, not within the duty to bargain." AFGE v. Department of Commerce, 7 FLRA No. 13 at 92 (1981). It would, the Authority said, "directly interfere with the exercise of management's rights under section 7106(a)(2)(C) to choose among candidates from appropriate sources in filling a vacancy and, consequently, cannot be deemed an 'appropriate arrangement for employees adversely affected' by management's exercise of its statutory rights, within the meaning of section 7106(b)(3) of the Statute." Id. at 93. 1 This reading of the statute cannot be sustained.

That an arrangement proposed under paragraph (b)(3) of Sec. 7106 is not ipso facto invalidated by conflicting with paragraph (a)(2)(C) is evident from the prologue of subsection (b), which states that "[n]othing in this section shall preclude any agency and any labor organization from negotiating" over the specified items. The prologue of subsection (a) makes the same point, declaring that all the management prerogatives it contains (including those in paragraph (a)(2)(C)) are "[s]ubject to subsection (b) of this section." It is impossible to adopt the Authority's interpretation without

Page 1186

depriving these provisions of all meaning insofar as paragraph (b)(3) is concerned.

The Authority relies upon the "direct interference test," reflected in prior decisions of the Authority 2 and approved by this court in Department of Defense v. FLRA, 659 F.2d 1140, 1159 (D.C.Cir.1981), cert. denied sub nom. AFGE v. FLRA, 455 U.S. 945, 102 S.Ct. 1443, 71 L.Ed.2d 658 (1982). Those decisions and that case, however, did not involve paragraph (b)(3), but rather paragraph (b)(2), which exempts from the management prerogative restriction...

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48 practice notes
  • National Treasury Employees Union v. U.S. Merit Systems Protection Bd., No. 82-1206
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • September 11, 1984
    ...of an otherwise unclear, disputable application. See American Federation of Government Employees v. Federal Labor Relations Authority, 702 F.2d 1183, 1186-87 (D.C.Cir.1983). The list of exceptions thus does not purport to address any problem relating to determining the meaning of sections 7......
  • Overseas Educ. Ass'n, Inc. v. Federal Labor Relations Authority, Nos. 87-1468
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • May 25, 1989
    ...more demanding because its requirements change. See, e.g., American Federation of Government Employees, AFL-CIO, Local 2782 v. FLRA, 702 F.2d 1183 (D.C.Cir.1983) (involving employee demotions). This, the Authority argues, buttresses its position. Read in context, we think it does not. The a......
  • Applicability of Tax Levies Under 26 U.S.C. § 6334 To Thrift Savings Plan Accounts, 10-5
    • United States
    • Opinions of the Office of Legal Counsel of the Department of Justice
    • May 3, 2010
    ...6334(a) cannot be understood as simply “clarify[ing]” the scope of the rule in section 6334(c). Am. Fed’n of Gov’t Employees v. FLRA, 702 F.2d 1183, 1187 (D.C. Cir. 1983) [ 7] (opinion by Scalia, J.); see also Drye, 528 U.S. at 56 (concluding that “[t]he enumeration [of exceptions to sectio......
  • Justice Antonin Scalia, Constitutional Discourse, and the Legalistic State
    • United States
    • Political Research Quarterly Nbr. 44-4, December 1991
    • December 1, 1991
    ...States, 790 F.2d 938 (D.C. Cir. 1986).American Federation of Government Employees, Local 2782 v. Federal Labor Relations Authority, 702 F.2d 1183 (D.C. Cir. 1983). American Trucking Associations v. Interstate Commerce Commission, 747 F.2d 787 (D.C. Cir. 1984). American Trucking Associations......
  • Request a trial to view additional results
47 cases
  • National Treasury Employees Union v. U.S. Merit Systems Protection Bd., No. 82-1206
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • September 11, 1984
    ...of an otherwise unclear, disputable application. See American Federation of Government Employees v. Federal Labor Relations Authority, 702 F.2d 1183, 1186-87 (D.C.Cir.1983). The list of exceptions thus does not purport to address any problem relating to determining the meaning of sections 7......
  • Overseas Educ. Ass'n, Inc. v. Federal Labor Relations Authority, Nos. 87-1468
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • May 25, 1989
    ...more demanding because its requirements change. See, e.g., American Federation of Government Employees, AFL-CIO, Local 2782 v. FLRA, 702 F.2d 1183 (D.C.Cir.1983) (involving employee demotions). This, the Authority argues, buttresses its position. Read in context, we think it does not. The a......
  • Applicability of Tax Levies Under 26 U.S.C. § 6334 To Thrift Savings Plan Accounts, 10-5
    • United States
    • Opinions of the Office of Legal Counsel of the Department of Justice
    • May 3, 2010
    ...6334(a) cannot be understood as simply “clarify[ing]” the scope of the rule in section 6334(c). Am. Fed’n of Gov’t Employees v. FLRA, 702 F.2d 1183, 1187 (D.C. Cir. 1983) [ 7] (opinion by Scalia, J.); see also Drye, 528 U.S. at 56 (concluding that “[t]he enumeration [of exceptions to sectio......
  • Association of Civilian Technicians v. F.L.R.A., No. 03-1321.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • June 15, 2004
    ...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 mana......
  • Request a trial to view additional results
1 books & journal articles
  • Justice Antonin Scalia, Constitutional Discourse, and the Legalistic State
    • United States
    • Political Research Quarterly Nbr. 44-4, December 1991
    • December 1, 1991
    ...States, 790 F.2d 938 (D.C. Cir. 1986).American Federation of Government Employees, Local 2782 v. Federal Labor Relations Authority, 702 F.2d 1183 (D.C. Cir. 1983). American Trucking Associations v. Interstate Commerce Commission, 747 F.2d 787 (D.C. Cir. 1984). American Trucking Associations......

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