American Federation of Government Employees, Locals 225, 1504, and 3723, AFL-CIO v. Federal Labor Relations Authority, AFL-CI

• Citation: 712 F.2d 640
• Decision Date: 08 July 1983
• Docket Number: P,No. 82-2182,AFL-CI,82-2182
• Parties: 113 L.R.R.M. (BNA) 3679, 229 U.S.App.D.C. 326 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCALS 225, 1504, AND 3723,etitioners, v. FEDERAL LABOR RELATIONS AUTHORITY.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

Page 640

712 F.2d 640

113 L.R.R.M. (BNA) 3679, 229 U.S.App.D.C. 326

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCALS 225 1504, AND 3723, AFL-CIO, Petitioners, v. FEDERAL LABOR RELATIONS AUTHORITY.

No. 82-2182.

United States Court of Appeals District of Columbia Circuit.

Argued May 25, 1983.

Decided July 8, 1983.

Mark D. Roth, Washington, D.C., with whom James R. Rosa, Washington, D.C., was on brief, for petitioners.

William E. Persina, Acting Deputy Sol., Federal Labor Relations Authority, Washington, D.C., with whom Steven H. Svartz, Acting Sol., Federal Labor Relations Authority, Washington, D.C., was on brief, for respondent.

Before TAMM, GINSBURG and BORK, Circuit Judges.

Opinion for the Court filed by Circuit Judge GINSBURG.

GINSBURG, Circuit Judge:

This case concerns the obligation of federal employees' collective bargaining representatives to bargain with federal agencies over the scope of grievance procedures included in a negotiated agreement, and the agencies' corresponding right to bargain to impasse over the scope of those procedures.

The American Federation of Government Employees, AFL-CIO, Locals 225, 1504, and 3723 ("AFGE" or "the Union"), contends that under the Federal Service Labor-Management Relations Act, 5 U.S.C. §§ 7101 -35 (Supp. V 1981), the scope of the matters made amenable to negotiated grievance procedures is a "permissive" subject for bargaining, one that the Union may, if it chooses, categorically refuse to address at the bargaining table. The General Counsel to the Federal Labor Relations Authority ("FLRA" or "the Authority") has urged the Authority to rule that grievance procedure scope is a subject parties are obliged to "discuss," but need not bargain, and may not bargain to impasse. The FLRA rejected both of these views: it ruled that "scope" is a "mandatory" subject of bargaining; neither party may refuse to negotiate the matter, but either party may adhere to its position to the point of precipitating a bargaining impasse. The Authority added, however, that if impasse is reached on the scope question, the burden is on the party seeking to narrow scope to show that its position is the more reasonable one.

Pursuant to 5 U.S.C. § 7123, the Union seeks our review of three FLRA decisions that turn on this single question of statutory construction. For the reasons set forth below, we affirm the Authority's decisions in the three cases under review.

I. BACKGROUND

A. The Federal Service Labor-Management Relations Act

The Federal Service Labor-Management Relations Act ("Act" or "Statute") requires federal agencies and unions representing federal employees to bargain over terms and conditions of employment. The parties are obliged to bargain in good faith; ¹ a failure to do so constitutes an "unfair labor practice" which may be the subject of a complaint brought to the FLRA. ² If negotiations between the parties reach an impasse, either party may refer the dispute to the Federal Service Impasses Panel (the "Panel"). The Panel is authorized to "take whatever action is necessary ... to resolve the impasse." Panel decisions are "binding on [the] parties during the term of the agreement, unless the parties agree otherwise." ³ A party's refusal to acquiesce in a Panel decision is subject to sanction as an unfair labor practice. ⁴

The Act directs that "any collective bargaining agreement shall provide procedures for the settlement of grievances." ⁵ Grievance procedures must be fair and simple, expeditious, and designed to safeguard the participation rights of individual employees and the union. ⁶ Subject to these limitations, the parties may shape the procedures as they choose. Grievances not satisfactorily settled under the negotiated procedures may be submitted to binding arbitration by either party. ⁷

The Act defines a "grievance" as a complaint by an employee, labor organization, or agency, concerning employment, the interpretation of a collectively bargained agreement, or the application of laws affecting conditions of employment. ⁸ The legislation's broad, initial requirement that the parties negotiate procedures for settling grievances, 5 U.S.C. § 7121(a)(1), is qualified by the specification that a collective bargaining agreement "may exclude any matter from the application of the grievance procedures." 5 U.S.C. § 7121(a)(2). Five subjects itemized in section 7121(c) of the Act must be excluded from the scope of the grievance procedure. ⁹

A collectively bargained agreement that excludes from the grievance procedure only the five subjects specified in section 7121(c) is termed a "broad scope" agreement; one that excludes other subjects as well is called a "limited scope" agreement. In the negotiations in question here the agencies sought, and the Union opposed, limited scope agreements, agreements that would have excluded from the grievance procedure such matters as reductions in force, uncoerced resignations, position classifications, and interpretations of agency regulations. Joint Appendix (J.A.) 38.

B. Vermont Guard

The FLRA's pathmarking decision holding grievance procedure scope a mandatory subject of bargaining is Vermont Air National Guard, Burlington, Vermont and Association of Civilian Technicians, Inc., 9 FLRA 737 (1982) ("Vermont Guard "). In Vermont Guard, a union charged an agency with an unfair labor practice for "insisting to impasse on the exclusion [of certain adverse actions] from the scope of [the negotiated grievance] procedure." Id. at 738. The FLRA's General Counsel ¹⁰ argued to the Authority that a party seeking a full scope grievance procedure must consider the other party's proposal for a limited one; however, he continued, the proponent of a limited scope procedure "may not insist to impasse on the issue and then seek a resolution of the impasse by the Federal Service Impasses Panel." Id. at 740.

The FLRA disagreed, and dismissed the union's complaint. The Authority relied on the Act's definition of "conditions of employment" and the scheme of the legislation to support its conclusion that the scope of a grievance procedure is a mandatory subject of bargaining, a subject on which a party is entitled to bargain to impasse. Id. at 740-42. As a final point, the FLRA stated: "Consistent with the intent of Congress expressed in the Statute and its pertinent legislative history, a party proposing to narrow the scope of the grievance procedure bears the burden in Panel proceedings to justify the proposed reduction in the scope of the grievance procedure." Id. at 742.

C. The three contested FLRA decisions

The Local 3723 --Navy Negotiations. ¹¹ --In November 1978, AFGE Local 3723 and the United States Department of the Navy commenced negotiations on a new collective bargaining agreement. The Navy proposed a limited scope agreement that would have excluded from the negotiated grievance procedure Navy decisions not to select an employee for promotion, decisions to terminate temporary employment, Navy interpretations of its regulations, and about ten other subjects.

AFGE insisted on a broad scope agreement, and refused to negotiate the matter with the Navy. AFGE initially took the position that it "would not discuss any exclusions beyond those quoted in the [Statute]." ¹² Later, it stated it "would discuss the management proposal but would not negotiate it." ¹³ The Union now characterizes its refusal to bargain with the Navy as "less than outright." Brief of Petitioner at 41.

The Navy filed an unfair labor practice charge with the FLRA in May 1979, alleging that the Union had violated the Act's requirement that the parties negotiate in good faith. An Administrative Law Judge agreed with the Navy. Citing Vermont Guard, the Authority upheld the decision on appeal.

The Local 225 --ARDC Negotiations. ¹⁴ --The United States Department of the Army, U.S. Army Armament Research and Development Command ("ARDC") and AFGE Local 225 began negotiating a new collective bargaining agreement in September 1979. The ARDC proposed that the new agreement exclude twenty-one matters from the grievance procedure. Throughout the negotiations, AFGE "maintained its position that it would neither consider nor discuss any exclusions beyond those required by the Statute." ¹⁵ The ARDC filed a complaint with the FLRA. Relying on Vermont Guard, the Authority ruled that the Union had committed an unfair labor practice.

The Local 1504 --Fort Lewis Negotiations. ¹⁶ --The United States Department of the Army, Fort Lewis, and AFGE Local 1504 commenced negotiations on a new collective bargaining agreement in March 1979. Fort Lewis proposed a limited scope grievance procedure; AFGE favored one of broad scope. The parties discussed their respective positions but ultimately failed to reach an accord. Fort Lewis suggested reference of the matter to the Federal Service Impasses Panel; AFGE rejected Panel involvement. AFGE and the FLRA's General Counsel charged Fort Lewis with an unfair labor practice. Again relying on Vermont Guard, the FLRA ruled that Fort Lewis' insistence on bargaining to impasse over the scope of the grievance procedure did not violate the Act.

II. DISCUSSION

Congress has entrusted to the FLRA primary responsibility for administering and enforcing the Federal Service Labor-Management Relations Act. An FLRA interpretation of the Act, if reasonable and coherent, commands our respect. See Federal Election Commission v. Democratic Senatorial Campaign Committee, 454 U.S. 27, 37-40, 102 S.Ct. 38, 44-46, 70 L.Ed.2d 23 (1981); NLRB v. Bell Aerospace Co., 416 U.S. 267, 274-75, 94 S.Ct. 1757, 1761-62, 40 L.Ed.2d 134 (1974). This court has several times so acknowledged. See, e.g., Department of Defense v. FLRA, 685 F.2d 641, 648 (D.C.Cir.1982); Department of Defense v. FLRA, 659 F.2d 1140, 1153 & n. 74 (D.C.Cir.1981), cert. denied, 455 U.S. 945, 102 S.Ct. 1443, 71 L.Ed.2d 658 (1982); National Federation of Federal Employees v. FLRA, 652 F.2d 191, 193 (D.C.Cir.1981)...